Wrap Text
Constitution
Orion Minerals Limited
Incorporated in the Commonwealth of Australia
Australian Company Number 098 939 274
ASX share code: ORN
JSE share code: ORN
ISIN: AU000000ORN1
(“Orion” or “the Company”)
Constitution
Orion Minerals Limited (ASX/JSE: ORN) (Orion or the Company) is pleased to advise that its Constitution
has been amended as approved by special resolution of shareholders, at today’s General Meeting.
The amendments were made to align with changes to the ASX Listing Rules which came into effect on
1 December 2019.
Please find attached the Company’s Constitution that included the amendments approved by
shareholders.
For and on behalf of the Board.
Martin Bouwmeester
Company Secretary
23 December 2019
ENQUIRIES
Investors Media JSE Sponsor
Errol Smart – Managing Director & CEO Nicholas Read Rick Irving
Denis Waddell – Chairman Read Corporate, Australia Merchantec Capital
T: +61 (0) 3 8080 7170 T: +61 (0) 419 929 046 T: +27 (0) 11 325 6363
E: info@orionminerals.com.au E: nicholas@readcorporate.com.au E: rick@merchantec.co.za
CORPORATIONS ACT 2001
CONSTITUTION
of
ORION MINERALS LTD
ACN 098 939 274
To be adopted by Special Resolution of the members on 23 December 2019
CONTENTS
1. INTERPRETATION ............................................................................................................................ 1
1.1 Definitions ...................................................................................................................... 1
1.2 Interpretation ................................................................................................................ 3
1.3 Corporations Act Definitions ....................................................................................... 3
1.4 Status of Constitution ................................................................................................... 3
1.5 General Authorisation .................................................................................................. 4
1.6 Displacement of Replaceable Rules ......................................................................... 4
1.7 Enforceability ................................................................................................................ 4
1.8 Jurisdiction ..................................................................................................................... 4
2. SHARE CAPITAL AND VARIATION OF RIGHTS ............................................................................. 4
2.1 Rights Attaching to Shares .......................................................................................... 4
2.2 Issue of Shares ............................................................................................................... 4
2.3 Share Options ............................................................................................................... 4
2.4 Variation of class rights ................................................................................................ 4
2.5 Effect of share issue on class rights ............................................................................. 5
2.6 Preference Shares ........................................................................................................ 5
2.7 Recognition of Trusts .................................................................................................... 5
2.8 Unregistered Interests ................................................................................................... 5
2.9 Share Certificates and Share Option Certificates .................................................... 5
2.10 Section 1071H of the Corporations Act ..................................................................... 6
2.11 Commissions .................................................................................................................. 6
2.12 Restricted Securities ..................................................................................................... 6
2.13 Non-Issue or Cancellation of Certificate ................................................................... 6
2.14 No Prohibition on Foreign Ownership ........................................................................ 6
2.15 Payment of Interest out of Capital ............................................................................. 7
3. MINIMUM SHAREHOLDING .......................................................................................................... 7
3.1 Effect of this Clause ...................................................................................................... 7
3.2 Definitions ...................................................................................................................... 7
3.3 Minimum Shareholding ................................................................................................ 7
3.4 Sale of Listed Securities of Minority Member ............................................................. 7
3.5 Acceptance of Offer ................................................................................................... 8
3.6 Appointment of Attorney ............................................................................................ 8
3.7 Transfer ........................................................................................................................... 8
3.8 Proceeds of Sale ........................................................................................................... 8
3.9 Receipt of Proceeds .................................................................................................... 8
3.10 Registration of Purchaser ............................................................................................. 8
3.11 Remedies Limited ......................................................................................................... 9
3.12 Cost of Sale of Listed Securities................................................................................... 9
3.13 Exemption from clause 3 ............................................................................................. 9
3.14 Notice to Exempt .......................................................................................................... 9
3.15 Takeover Offer or Announcement ............................................................................. 9
3.16 Use by Company of Clause 3 ..................................................................................... 9
3.17 Notice to New Minority Members ............................................................................... 9
4. UNCERTIFICATED HOLDINGS AND ELECTRONIC TRANSFERS ................................................... 10
4.1 Electronic or Computerised Holding ........................................................................ 10
4.2 Statement of Holdings ............................................................................................... 10
4.3 Share Certificates ....................................................................................................... 10
4.4 Listing Rules .................................................................................................................. 10
5. LIEN .............................................................................................................................................. 10
Orion Constitution announcement 231219 i
5.1 Lien for Members Debts ............................................................................................. 10
5.2 Generally ..................................................................................................................... 10
5.3 Exemption.................................................................................................................... 11
5.4 Dividends ..................................................................................................................... 11
5.5 Sale of Shares .............................................................................................................. 11
5.6 Restrictions on Sale ..................................................................................................... 11
5.7 Person Authorised to Sign Transfers .......................................................................... 12
5.8 Proceeds of Sale ......................................................................................................... 12
5.9 Protection of Lien under ASX Settlement Operating Rules ................................... 12
5.10 Further Powers re Forfeited Shares and Liens .......................................................... 12
6. CALLS ON SHARES ...................................................................................................................... 12
6.1 Calls .............................................................................................................................. 12
6.2 Payment of Calls ........................................................................................................ 12
6.3 Quoted Shares ............................................................................................................ 12
6.4 Unquoted Shares ........................................................................................................ 13
6.5 Joint Liability ................................................................................................................ 13
6.6 Deemed Calls ............................................................................................................. 13
6.7 Differentiation between Shareholders ..................................................................... 13
6.8 Payments in Advance of Calls.................................................................................. 13
6.9 Outstanding Moneys .................................................................................................. 13
6.10 Revocation/Postponement or Extension ................................................................. 13
6.11 Compliance with Listing Rules and Corporations Act ........................................... 13
6.12 Waive ........................................................................................................................... 14
7. FORFEITURE OF SHARES .............................................................................................................. 14
7.1 Failure to Pay Call ....................................................................................................... 14
7.2 Forfeiture ...................................................................................................................... 14
7.3 Sale of Forfeited Shares ............................................................................................. 14
7.4 Continuing Liability ..................................................................................................... 14
7.5 Officer’s Statement Prima Facie Evidence ............................................................. 14
7.6 Procedures .................................................................................................................. 14
7.7 Listing Rules and ASX Settlement Operating Rules ................................................. 15
7.8 Waive ........................................................................................................................... 15
8. TRANSFER OF SHARES ................................................................................................................. 15
8.1 Form of Transfer ........................................................................................................... 15
8.2 CHESS Transfers ........................................................................................................... 15
8.3 Participation in CHESS ................................................................................................ 15
8.4 Registration Procedure .............................................................................................. 15
8.5 Power to Refuse to Register ...................................................................................... 16
8.6 Closure of Register ...................................................................................................... 16
8.7 Retention of Transfers by Company ......................................................................... 16
8.8 Power to suspend registration of transfers ............................................................... 16
8.9 Powers of Attorney ..................................................................................................... 16
8.10 Other Securities ........................................................................................................... 16
8.11 Branch Register ........................................................................................................... 16
8.12 Compliance with ASX Settlement Operating Rules ............................................... 16
8.13 Issuer Sponsored Subregister ..................................................................................... 17
8.14 Transferor Holds Shares until Registration of Transfer .............................................. 17
8.15 Waive ........................................................................................................................... 17
9. TRANSMISSION OF SHARES ........................................................................................................ 17
9.1 Death of Shareholder Leaving a Will ....................................................................... 17
9.2 Death or Bankruptcy of Shareholder or the Shareholder becomes of unsound
mind ............................................................................................................................. 17
Orion Constitution announcement 231219 ii
9.3 Registration by Transmission or to Beneficiary ......................................................... 17
9.4 Limitations to Apply .................................................................................................... 17
9.5 Death of a Joint Holder ............................................................................................. 18
9.6 Joint Personal Representatives ................................................................................. 18
9.7 ASX Settlement Transfer ............................................................................................. 18
9.8 Joint Holders ................................................................................................................ 18
10. CHANGES TO CAPITAL STRUCTURE ........................................................................................... 18
10.1 Alterations to Capital ................................................................................................. 18
10.2 Reduction of Capital ................................................................................................. 18
10.3 Buy-Backs .................................................................................................................... 18
10.4 Fractions ...................................................................................................................... 19
11. WRITTEN RESOLUTIONS ............................................................................................................... 19
12. GENERAL MEETINGS ................................................................................................................... 19
12.1 Convening of General Meetings of Shareholders by Directors’ Resolution ........ 19
12.2 Change of place or postponement of a General Meeting of Shareholders ..... 19
12.3 Convening of General Meetings of Shareholders by a Director or requisition ... 19
12.4 Cancellation of a General Meeting of Shareholders ............................................ 20
12.5 Notice .......................................................................................................................... 20
12.6 Irregularities in giving notice...................................................................................... 20
12.7 Business at General Meeting .................................................................................... 20
12.8 Notice to Home Branch ............................................................................................. 20
12.9 Annual General Meeting .......................................................................................... 21
13. PROCEEDINGS AT GENERAL MEETINGS .................................................................................... 21
13.1 Quorum........................................................................................................................ 21
13.2 Persons Entitled to Attend a General Meeting ....................................................... 21
13.3 Refusal of Admission to Meetings ............................................................................. 21
13.4 Insufficient room ......................................................................................................... 21
13.5 Chairman .................................................................................................................... 22
13.6 Vacating Chair ........................................................................................................... 22
13.7 Disputes Concerning Procedure .............................................................................. 22
13.8 General Conduct ....................................................................................................... 22
13.9 Adjournment ............................................................................................................... 22
13.10 Notice of Resumption of Adjourned Meeting ........................................................ 22
13.11 How resolutions are decided .................................................................................... 22
13.12 Casting Vote ............................................................................................................... 22
13.13 Voting Rights ............................................................................................................... 22
13.14 Voting - Show of Hands ............................................................................................. 23
13.15 Results of Voting ......................................................................................................... 23
13.16 Poll ................................................................................................................................ 23
13.17 Manner of Taking Poll ................................................................................................. 23
13.18 Meeting May Continue ............................................................................................. 23
13.19 Voting by Joint Holders .............................................................................................. 23
13.20 Shareholder under Disability ..................................................................................... 23
13.21 Payment of Calls ........................................................................................................ 24
13.22 Objection to Voting ................................................................................................... 24
13.23 Restrictions on voting ................................................................................................. 24
13.24 Proxies .......................................................................................................................... 24
13.25 Electronic Appointment of Proxy.............................................................................. 25
13.26 Name of proxy ............................................................................................................ 25
13.27 Incomplete proxy appointment ............................................................................... 25
13.28 No right to speak or vote if appointing Shareholder present ............................... 25
13.29 Rights where 2 proxies or attorneys are appointed ............................................... 25
Orion Constitution announcement 231219 iii
13.30 More than 2 proxies or attorneys appointed .......................................................... 25
13.31 Proxy Votes .................................................................................................................. 26
13.32 Representatives of Corporate Shareholders ........................................................... 26
13.33 More than one Representative present .................................................................. 26
13.34 Rights of Representatives, proxies and attorneys ................................................... 26
14. THE DIRECTORS ............................................................................................................................ 27
14.1 Number of Directors ................................................................................................... 27
14.2 Rotation of Directors .................................................................................................. 27
14.3 Election of Directors ................................................................................................... 27
14.4 Additional Directors .................................................................................................... 28
14.5 Removal of Director ................................................................................................... 28
14.6 Vacation of Office ..................................................................................................... 28
14.7 Remuneration ............................................................................................................. 28
14.8 Initial Fees to Directors ............................................................................................... 28
14.9 Expenses ...................................................................................................................... 29
14.10 No Share Qualification............................................................................................... 29
15. POWERS AND DUTIES OF DIRECTORS ........................................................................................ 29
15.1 Management of the Company ............................................................................... 29
15.2 Borrowings ................................................................................................................... 29
15.3 Attorneys ..................................................................................................................... 29
15.4 Cheques, etc. ............................................................................................................. 30
15.5 Retirement Benefits for Directors .............................................................................. 30
15.6 Securities to Directors or Shareholders ..................................................................... 30
16. PROCEEDINGS OF DIRECTORS ................................................................................................... 30
16.1 Convening a Meeting ............................................................................................... 30
16.2 Procedure at Meetings .............................................................................................. 30
16.3 Quorum........................................................................................................................ 30
16.4 Secretary May Attend and Be Heard ...................................................................... 31
16.5 Majority Decisions ....................................................................................................... 31
16.6 Casting Votes .............................................................................................................. 31
16.7 Alternate Directors ..................................................................................................... 31
16.8 Continuing Directors May Act .................................................................................. 31
16.9 Chairman .................................................................................................................... 32
16.10 Committees................................................................................................................. 32
16.11 Written Resolutions ..................................................................................................... 32
16.12 Defective Appointment ............................................................................................ 32
16.13 Directors May Hold Other Offices ............................................................................. 32
16.14 Directors May Hold Shares, etc. ................................................................................ 32
16.15 Directors Not Accountable for Benefits ................................................................... 33
16.16 Disclosure of Interests in Related Matters ................................................................ 33
16.17 Disclosure of Shareholding ........................................................................................ 33
16.18 Related Body Corporate Contracts ......................................................................... 33
16.19 Voting, Affixation of Seal ........................................................................................... 33
16.20 Home Branch to be Advised .................................................................................... 33
17. MEETING BY INSTANTANEOUS COMMUNICATION DEVICE .................................................... 34
17.1 Meetings to be Effectual ........................................................................................... 34
17.2 Procedure at Meetings .............................................................................................. 34
17.3 Minutes......................................................................................................................... 34
17.4 Definition ...................................................................................................................... 34
18. MANAGING AND EXECUTIVE DIRECTORS AND SECRETARIES................................................. 34
18.1 Appointment ............................................................................................................... 34
Orion Constitution announcement 231219 iv
18.2 Remuneration ............................................................................................................. 35
18.3 Powers .......................................................................................................................... 35
18.4 Rotation ....................................................................................................................... 35
18.5 Secretary ..................................................................................................................... 35
19. SEALS ........................................................................................................................................... 35
19.1 Common Seal ............................................................................................................. 35
19.2 Execution of Documents Without a Seal ................................................................. 35
19.3 Share Seal .................................................................................................................... 35
20. ACCOUNTS, AUDIT AND RECORDS ........................................................................................... 36
20.1 Accounting records to be kept ................................................................................ 36
20.2 Audit ............................................................................................................................. 36
20.3 Inspection .................................................................................................................... 36
21. MINUTES ....................................................................................................................................... 36
21.1 Minutes to be Kept ..................................................................................................... 36
21.2 Signature of Minutes .................................................................................................. 36
21.3 Requirements of the Corporations Act .................................................................... 36
22. DIVIDENDS AND RESERVES ......................................................................................................... 37
22.1 Dividends ..................................................................................................................... 37
22.2 Interim Dividend ......................................................................................................... 37
22.3 No Interest ................................................................................................................... 37
22.4 Reserves ....................................................................................................................... 37
22.5 Carrying forward profits ............................................................................................. 37
22.6 Alternative Method of Payment of Dividend ......................................................... 37
22.7 Shareholders entitled to dividend ............................................................................ 38
22.8 Payment of Dividends ................................................................................................ 38
22.9 Unclaimed Dividends ................................................................................................. 38
22.10 Breach of Restriction Agreement ............................................................................. 38
23. CAPITALISATION OF PROFITS ..................................................................................................... 38
23.1 Capitalisation .............................................................................................................. 38
23.2 Application of Capitalised Amounts........................................................................ 38
23.3 Procedures .................................................................................................................. 39
24. BONUS SHARE PLAN ................................................................................................................... 39
24.1 Authorisation of Bonus Share Plan ............................................................................ 39
24.2 Amendment and Revocation .................................................................................. 39
25. DIVIDEND REINVESTMENT PLAN ................................................................................................. 39
25.1 Authorisation of Dividend Reinvestment Plan ......................................................... 39
25.2 Amendment and Revocation .................................................................................. 39
26. NOTICES....................................................................................................................................... 40
26.1 Service by the Company to Shareholders .............................................................. 40
26.2 Service of notices by the Company to Directors ................................................... 40
26.3 Service of notices by Directors, Alternate Directors and Shareholders to the
Company .................................................................................................................... 40
26.4 Deemed receipt of Notice........................................................................................ 40
26.5 Notice to Joint Holders .............................................................................................. 41
26.6 Notices to Personal Representatives and Others ................................................... 41
26.7 Persons Entitled to Notice .......................................................................................... 41
26.8 Change of Address .................................................................................................... 41
26.9 Incorrect Address ....................................................................................................... 41
Orion Constitution announcement 231219 v
27. WINDING UP ................................................................................................................................ 41
27.1 Distribution in Kind ...................................................................................................... 41
27.2 Trust for Shareholders ................................................................................................. 42
27.3 Distribution in Proportion to Shares Held .................................................................. 42
28. INDEMNITIES AND INSURANCE .................................................................................................. 42
28.1 Liability to Third Parties ............................................................................................... 42
28.2 Defending Proceedings ............................................................................................ 42
28.3 Insurance ..................................................................................................................... 42
28.4 Disclosure ..................................................................................................................... 43
28.5 Definition ...................................................................................................................... 43
29. DIRECTORS’ ACCESS TO INFORMATION ................................................................................... 43
30. OVERSEAS SHAREHOLDERS ........................................................................................................ 43
31. LOCAL MANAGEMENT ............................................................................................................... 43
31.1 Local Management ................................................................................................... 43
31.2 Local Boards or Agencies.......................................................................................... 43
31.3 Appointment of Attorneys ......................................................................................... 44
31.4 Authority of Attorneys ................................................................................................ 44
32. DISCOVERY ................................................................................................................................. 44
33. COMPLIANCE (OR INCONSISTENCY) WITH THE LISTING RULES ............................................... 44
34. CONSISTENCY WITH CHAPTER 2E OF THE CORPORATIONS ACT ............................................ 45
34.1 Requirements of Chapter 2E ..................................................................................... 45
34.2 Definitions .................................................................................................................... 45
35. INADVERTENT OMISSIONS .......................................................................................................... 45
36. TRANSITIONAL ............................................................................................................................. 45
36.1 Provisions Relating to Official Quotation of Securities ........................................... 45
36.2 Severance ................................................................................................................... 45
SCHEDULE 1 – PREFERENCE SHARES (CLAUSE 2.6) ................................................................................... 46
Orion Constitution announcement 231219 vi
CORPORATIONS ACT
CONSTITUTION
of
Orion Minerals Ltd
ACN 098 939 274
1. INTERPRETATION
1.1 Definitions
In this Constitution:
Alternate Director means a person appointed as an alternate director under clause
16.7.
ASIC means Australian Securities and Investments Commission.
ASX means ASX Limited (ACN 008 624 691) or the Australian Securities Exchange, as the
context requires.
ASX Settlement means ASX Settlement Pty Ltd (ACN 008 504 532).
ASX Settlement Operating Rules means the operating rules of ASX Settlement.
ASX Settlement Transfer means a transfer of quoted securities or quoted rights effected
in:
(a) accordance with the ASX Settlement Operating Rules; or
(b) substantial accordance with the ASX Settlement Operating Rules and
determined by ASX Settlement to be an effective transfer.
Auditor means the Company’s auditor.
Bonus Share Plan means a plan implemented under clause 24.
Business Day means a day other than a Saturday, a Sunday, New Year's Day, Australia
Day, Good Friday, Easter Monday, Anzac Day, Christmas Day, Boxing Day and any
other day declared and published by ASX to be a day which is not a business day.
CHESS Approved Securities means securities of the Company for which CHESS approval
has been given in accordance with the ASX Settlement Operating Rules, or such
amended definition as may be prescribed by the Listing Rules from time to time.
CHESS System means the Clearing House Electronic Subregister System operated by ASX
Settlement or such other securities clearing house as is approved pursuant to the
Corporations Act and to which the Listing Rules apply.
Company means Orion Minerals Ltd (ACN 098 939 274) or as it is from time to time
named in accordance with the Corporations Act of this jurisdiction.
Constitution means this Constitution as altered or amended from time to time.
Corporations Act means the Corporations Act 2001 (Cth).
Corporations Regulations means the Corporations Regulations 2001 (Cth).
Director means a person appointed to the position of a director of the Company and
where appropriate, includes an Alternate Director.
Directors means all or some of the Directors acting as a board.
Dividend Reinvestment Plan means a plan implemented under clause 25.
Duty means any transfer, transaction or registration duty or similar charge imposed by
any Government Authority and includes any interest, fine, penalty, charge or other
amount imposed in respect of any of them.
Government Authority means a government or government department, a
governmental or semi-governmental or judicial person (whether autonomous or not)
charged with the administration of any applicable law.
Home Branch means the state branch of ASX designated as such in relation to the
Company by ASX.
Listed Securities means any Shares, Share Options, stock, debentures, debenture stock
or other securities for the time being issued by the Company and officially quoted by
ASX on its stock market.
Listing Rules means the listing rules of ASX and any other rules of ASX which are
applicable while the Company is admitted to the official list of ASX, each as amended
or replaced from time to time, except to the extent of any express written waiver by
ASX.
Loan Securities includes:
(a) unsecured notes or unsecured deposit notes;
(b) mortgage debentures or mortgage debenture stock;
(c) debentures or debenture stock; and
(d) for the purposes of the Listing Rules, convertible loan securities.
Office means the registered office of the Company.
Officer means any Director or Secretary of the Company or such other person within the
meaning of that term as defined by the Corporations Act.
Official List means the Official List of the ASX.
Prescribed Rate means the interest rate which is 2% above the Reserve Bank of Australia
cash rate as published or quoted from time to time, or such other rate as may from time
to time be fixed by the Directors, calculated daily.
Registered Office means the registered office of the Company in the State.
Register of Shareholders means the register of Shareholders kept by the Company in
accordance with section 169 of the Corporations Act (including any branch register
and any computerised or electronic subregister established and administered under the
ASX Settlement Operating Rules).
Related Body Corporate means a corporation which by virtue of the provisions of
section 50 of the Corporations Act is deemed to be related to the relevant corporation
and related has a corresponding meaning.
Representative means a person authorised to act as a representative of a corporation
under clause 13.32.
Restricted Securities has the meaning ascribed to it by the Listing Rules.
Seal means the common seal of the Company and includes any official seal and,
where the context so admits, the Share Seal of the Company.
Secretary means any person appointed to perform the duties of a secretary of the
Company.
Share means a share in the capital of the Company.
Shareholder means a person or company registered in the Register of Shareholders as
the holder of one or more Shares and includes any person or company who is a
member of the Company in accordance with or for the purposes of the Corporations
Act.
Shareholding Account means an entry in the Register of Shareholders in respect of a
Shareholder for the purpose of providing a separate identification of some or all of the
ordinary Shares registered from time to time in the name of that Shareholder and
Securities Account has an equivalent meaning in relation to Listed Securities of all kinds,
including ordinary Shares.
Share Option means an option to require the Company to allot and issue a Share.
Share Seal means the duplicate common seal referred to in clause 19.3.
State means Western Australia.
1.2 Interpretation
(a) A reference in this Constitution to a partly paid share is a reference to a share
on which there is an amount unpaid.
(b) A reference in this Constitution to an amount unpaid on a share includes a
reference to any amount of the issue price which is unpaid.
(c) Unless the contrary intention appears, in this Constitution:
(i) the singular includes the plural and the plural includes the singular;
(ii) words that refer to any gender include all genders;
(iii) words used to refer to persons generally or to refer to a natural person
include a body corporate, body politic, partnership, joint venture,
association, board, group or other body (whether or not the body is
incorporated);
(iv) a reference to a person includes that person’s successors and legal
personal representatives;
(v) a reference to a statute or regulation, or a provision of any of them
includes all statutes, regulations or provisions amending, consolidating
or replacing them, and a reference to a statute includes all
regulations, proclamations, ordinances and by-laws issued under that
statute;
(vi) a reference to the Listing Rules or the ASX Settlement Operating Rules
includes any variation, consolidation or replacement of those rules
and is to be taken to be subject to any applicable waiver or
exemption; and
(vii) a reference to writing includes any method of reproducing words in a
visible form.
(d) In this Constitution, headings and body type are only for convenience and do
not affect the meaning of this Constitution.
1.3 Corporations Act Definitions
Any word or expression defined in or for the purposes of the Corporations Act shall,
unless otherwise defined in clause 1.1 or the context otherwise requires, have the same
meaning when used in this Constitution, and the rules of interpretation specified in or
otherwise applicable to the Corporations Act shall, unless the context otherwise
requires, apply in the interpretation of this Constitution.
1.4 Status of Constitution
This Constitution is adopted by the Company in substitution for any former
memorandum and articles of association or other consistent documents of the
3
Company. To the extent permitted by law, the replaceable rules provided for in the
Corporations Act do not apply to the Company.
1.5 General Authorisation
Where the Corporations Act authorises or permits a company to do any thing, if so
authorised by its constitution, the Company is authorised by this rule to do that thing.
1.6 Displacement of Replaceable Rules
The provisions of the Corporations Act that apply to public companies as replaceable
rules are displaced completely by this Constitution in relation to the Company except to
the extent they are repeated in this Constitution.
1.7 Enforceability
If any provision of this Constitution is or becomes illegal, invalid or unenforceable in any
jurisdiction then that illegality, invalidity or unenforceability does not affect the legality,
validity or enforceability in that jurisdiction of any other provision of this Constitution or
the legality, validity or enforceability in any other jurisdiction of that provision or any
other provision of this Constitution.
1.8 Jurisdiction
The courts having jurisdiction in Western Australia have non-exclusive jurisdiction to settle
any dispute arising out of or in connection with this Constitution and each Shareholder
irrevocably submits to the jurisdiction of those courts.
2. SHARE CAPITAL AND VARIATION OF RIGHTS
2.1 Rights Attaching to Shares
Subject to this Constitution and to the terms of issue of Shares, all Shares attract the right
to receive notice of and to attend and vote at all general meetings of the Company,
the right to receive dividends, in a winding up or a reduction of capital, the right to
participate equally in the distribution of the assets of the Company (both capital and
surplus), subject to any amounts unpaid on the Share and, in the case of a reduction, to
the terms of the reduction.
2.2 Issue of Shares
Without prejudice to any special rights previously conferred on the holders of any
existing Shares or class of Shares, unissued Shares shall be under the control of the
Directors and, subject to the Corporations Act, the Listing Rules and this Constitution, the
Directors may at any time issue such number of Shares either as ordinary Shares or
Shares of a named class or classes (being either an existing class or a new class) at the
issue price that the Directors determine and with such preferred, deferred, or other
special rights or such restrictions, whether with regard to dividend, voting, return of
capital or otherwise, as the Directors shall, in their absolute discretion, determine.
2.3 Share Options
Subject to the Listing Rules, the Directors may at any time and from time to time issue
Share Options on such terms and conditions as the Directors shall, in their absolute
discretion, determine.
2.4 Variation of class rights
If at any time the share capital of the Company is divided into different classes of
Shares, the rights attached to any class (unless otherwise provided by the terms of issue
of the Shares of that class) may be varied, whether or not the Company is being wound
up, with the consent in writing of the holders of three quarters of the issued Shares of
that class, or if authorised by a special resolution passed at a separate meeting of the
holders of the Shares of the class. Any variation of rights under this clause 2.4 shall be
4
subject to Part 2F.2 of Chapter 2F of the Corporations Act. The provisions of this
Constitution relating to general meetings shall apply so far as they are capable of
application and with necessary alterations to every such separate meeting except that
a quorum is constituted by two persons who together hold or represent by proxy not less
than one-third of the issued Shares of the class.
2.5 Effect of share issue on class rights
The rights attached to any class of shares are not taken to be varied by the issue or
creation of further shares ranking equally with them unless expressly provided by the
terms of issue of the shares of that class.
2.6 Preference Shares
Subject to the Listing Rules and the Corporations Act, the Company may issue
Preference Shares:
(a) that are liable to be redeemed whether at the option of the Company or
otherwise; and
(b) including, without limitation preference shares of the kind described in clause
2.6(a) in accordance with the terms of Schedule 1.
2.7 Recognition of Trusts
Except as permitted or required by the Corporations Act, the Company shall not
recognise a person as holding a Share or Share Option upon any trust.
2.8 Unregistered Interests
The Company is not bound by or compelled in any way to recognise any equitable,
contingent, future or partial right or interest in any Share or Share Option (whether or not
it has notice of the interest or right concerned) unless otherwise provided by this
Constitution or by law, except an absolute right of ownership in the registered holder of
the Share or Share Option.
2.9 Share Certificates and Share Option Certificates
Subject to the ASX Settlement Operating Rules (if applicable), clause 4 and the Listing
Rules, a person whose name is entered as a Shareholder in the Register of Shareholders
is entitled without payment to receive a Share certificate or notice (as the case may
be) in respect of the Share under the Seal in accordance with the Corporations Act but,
in respect of a Share or Shares held jointly by several persons, the Company is not
bound to issue more than one certificate or notice. Delivery of a certificate or notice for
a Share to one of several joint Shareholders is sufficient delivery to all such holders. In
addition:
(a) Share certificates or notices in respect of Shares shall only be issued in
accordance with the Listing Rules;
(b) subject to this Constitution, the Company shall dispatch all appropriate Share
certificates within one month from the date of issue of any of its Shares and
within one month after the date upon which a transfer of any of its Shares is
lodged with the Company;
(c) where a Share certificate is lost, worn out or destroyed, the Company shall issue
a duplicate certificate in accordance with the requirements of section 1070D
of the Corporations Act and the Listing Rules; and
(d) the above provisions of this clause 2.9 shall, with necessary alterations, apply to
Share Options.
If securities of the Company are CHESS Approved Securities and held in uncertificated
mode, then the preceding provisions of this clause 2.9 do not apply to those CHESS
Approved Securities and the Company shall allot such CHESS Approved Securities and
5
enter those CHESS Approved Securities into the Shareholder's uncertificated holding in
accordance with the Listing Rules and the ASX Settlement Operating Rules.
2.10 Section 1071H of the Corporations Act
Clause 2.9 shall not apply if and to the extent that, on an application by or on behalf of
the Company, the ASIC has made a declaration under section 1071H(5) of the
Corporations Act published in the Commonwealth of Australia Gazette that the
Company is a person in relation to whom section 1071H of the Corporations Act does
not apply.
2.11 Commissions
The Company may, subject to the Listing Rules, exercise the powers of paying
commission conferred by section 258C of the Corporations Act. Such commission may
be satisfied by the payment of cash or the allotment of fully or partly paid Shares or
partly in the one way and partly in the other. The Company may also on any issue of
Shares pay such brokerage as may be lawful.
2.12 Restricted Securities
The Company shall comply in all respects with the requirements of the Listing Rules with
respect to Restricted Securities. Without limiting the generality of the above:
(a) A holder of Restricted Securities must not dispose of, or agree or offer to dispose
of, the Restricted Securities during the escrow period applicable to those
securities except as permitted by the Listing Rules or ASX;
(b) If the Restricted Securities are in the same class as quoted securities, the holder
will be taken to have agreed in writing that the Restricted Securities are to be
kept on the Company's issuer sponsored subregister and are to have a holding
lock applied for the duration of the escrow period applicable to those
securities;
(c) The Company will refuse to acknowledge any disposal (including, without
limitation, to register any transfer) of Restricted Securities during the escrow
period applicable to those securities except as permitted by the Listing Rules or
ASX;
(d) A holder of Restricted Securities will not be entitled to participate in any return
of capital on those securities during the escrow period applicable to those
securities except as permitted by the Listing Rules or ASX; and
(e) If a holder of Restricted Securities breaches a Restriction Deed (as that term is
defined in the Listing Rules) or a provision of this Constitution restricting a
disposal of those securities, the holder will not be entitled to any dividend or
distribution, or to exercise any voting rights, in respect of those securities for so
long as the breach continues.
2.13 Non-Issue or Cancellation of Certificate
Notwithstanding any other provision of this Constitution, the Company need not issue a
certificate, and may cancel any certificate without issuing a certificate in substitution, in
respect of any Shares or Share Options of the Company in any circumstances where the
non-issue or cancellation of that certificate is permitted by the Corporations Act, the
Listing Rules or the ASX Settlement Operating Rules.
2.14 No Prohibition on Foreign Ownership
Nothing in this Constitution shall have the effect of limiting or restricting the ownership of
any securities of the Company by foreign persons except where such limits or restrictions
are prescribed by Australian law.
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2.15 Payment of Interest out of Capital
Where any Shares are issued for the purpose of raising money to defray the expenses of
the construction of any works or buildings or the provision of any plant which cannot be
made profitable for a lengthened period the Company may pay interest on so much of
such share capital as is paid up for the period and may charge this interest to capital as
part of the cost of construction of the works, buildings or plant.
3. MINIMUM SHAREHOLDING
3.1 Effect of this Clause
The provisions of this clause have effect notwithstanding any other provision of this
Constitution, except clause 33.
3.2 Definitions
In this clause:
Authorised Price means the price per share of the Listed Securities equal to the simple
average of the last sale prices of the Listed Securities quoted on ASX for each of the ten
trading days immediately preceding the date of any offer received by the Company
pursuant to clause 3.5.
Date of Adoption means the date upon which this clause is inserted in this Constitution
by special resolution of the members of the Company.
Date of Effect has the meaning given in clause 3.13.
Minimum Shareholding means a number of shares equal to a “marketable parcel” of
Listed Securities within the meaning of the Listing Rules.
Minority Member means a member holding less than the Minimum Shareholding on or at
any time after the Date of Adoption.
New Minority Member means a member who is the holder or a joint holder of a New
Minimum Shareholding.
New Minimum Shareholding means a holding of shares in the same class created after
the Date of Adoption by the transfer of a parcel of shares the aggregate market price
of which, at the time at which a transfer of those Listed Securities was initiated or a
paper based transfer of those Listed Securities was lodged with the Company, was less
than a marketable parcel.
Purchaser means the person or persons (including one or more members) whose offer or
offers to purchase Listed Securities is or are accepted by the Company.
3.3 Minimum Shareholding
Subject to clauses 3.13 and 3.14, on and from the Date of Effect, the shareholding of a
member which is less than the Minimum Shareholding may be sold by the Company
pursuant to the provisions of this clause 3.
3.4 Sale of Listed Securities of Minority Member
Subject to clauses 3.13 and 3.14, on and from the Date of Effect, each Minority Member
shall be deemed to have irrevocably appointed the Company as his agent:
(a) to sell all the Listed Securities held by him at a price not less than the Authorised
Price and without any cost being incurred by the Minority Member;
(b) to deal with the proceeds of the sale of those Listed Securities in accordance
with this clause; and
(c) where the Listed Securities are CHESS Approved Securities held in
uncertificated form, to initiate a Holding Adjustment (as defined in the ASX
Settlement Operating Rules) to move the securities from the CHESS Holding (as
7
defined in the ASX Settlement Operating Rules) of the Minority Member to an
Issuer Sponsored or Certificated Holding (as defined in the ASX Settlement
Operating Rules) for the sale of the Listed Securities.
3.5 Acceptance of Offer
Where the Company receives an offer for the purchase of all the Listed Securities of a
Minority Member to whom this clause applies at the date of the offer at a price not less
than the Authorised Price, the Company may accept the offer on behalf of that
Minority Member.
3.6 Appointment of Attorney
The Company shall, by instrument in writing, appoint a person or persons to act as
attorney or attorneys of each Minority Member to whom this clause applies, to execute
an instrument or instruments of transfer of their Listed Securities to the Purchaser.
3.7 Transfer
Where:
(a) all the Listed Securities of each Minority Member to whom this clause applies at
any time are sold to one Purchaser; or
(b) all the Listed Securities of two or more Minority Members to whom this clause
applies at any time are sold to one Purchaser,
the transfer may be effected by one instrument of transfer.
3.8 Proceeds of Sale
The Company shall receive the aggregate proceeds of the sale of all of the Listed
Securities of each Minority Member to whom this clause applies at any time and shall:
(a) immediately cause the name of the Purchaser to be entered in the Register of
Shareholders as the holder of the Listed Securities sold; and
(b) within fourteen days of receipt of the relevant share certificate or otherwise as
soon as is practicable, cause the pro rata proportions of the proceeds
attributable to each Minority Member to be sent to each Minority Member by
electronic transfer or cheque mailed to his address in the Register of
Shareholders (or in the case of joint holders, to the address of the holder whose
name is shown first in the Register of Shareholders), this cheque or electronic
transfer to be made payable to the Minority Member (or, in the case of joint
holders, to them jointly). In the case where a Minority Member's whereabouts
are unknown or where a Minority Member fails to return the share certificate or
certificates (where required) relating to the Listed Securities sold, the proceeds
of sale shall be applied in accordance with the applicable laws dealing with
unclaimed moneys.
3.9 Receipt of Proceeds
The receipt by the Company of the proceeds of sale of Listed Securities of a Minority
Member shall be a good discharge to the Purchaser of all liability in respect of the
purchase of the Listed Securities.
3.10 Registration of Purchaser
Upon entry of the name of the Purchaser in the Register of Shareholders as the holder of
the Listed Securities of a Minority Member to whom this clause applies:
(a) the Purchaser shall not be bound to see to the regularity of the actions and
proceedings of the Company pursuant to this Constitution or to the application
of the proceeds of sale; and
(b) the validity of the sale shall not be impeached by any person.
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3.11 Remedies Limited
The remedy of any Minority Member to whom this clause applies in respect of the sale of
his or her Listed Securities is expressly limited to a right of action in damages against the
Company to the exclusion of any other right, remedy or relief against any other person.
3.12 Cost of Sale of Listed Securities
The Company shall bear all the costs of the sale of the Listed Securities.
3.13 Exemption from clause 3
(a) The Company must give written notice to a Minority Member and, where the
Shares are CHESS Approved Securities, to the Controlling Participant (as
defined in the ASX Settlement Operating Rules) for the holding of the Minority
Member, advising of the Company's intention to sell his or her shareholding
pursuant to this clause 3.
(b) Unless the Minority Member, within 6 weeks from the date the notice was sent
from the Company in accordance with this clause 3, gives written notice to the
Company that it desires its shareholding to be exempted from clause 3, then
the Company will be free to sell the Shares held by the relevant Minority
Member immediately following expiry of the 6 week period in accordance with
this clause 3 (Date of Effect).
(c) Where Shares are CHESS Approved Securities, a written notice by the Company
in terms of this clause shall comply with the ASX Settlement Operating Rules.
3.14 Notice to Exempt
Where a Minority Member has given written notice to the Company that it desires its
shareholding to be exempted from clause 3 it may, at any time prior to the sale of the
Listed Securities under clause 3.8, revoke or withdraw that notice. In that event the
provisions of clause 3 shall apply to the Minority Member.
3.15 Takeover Offer or Announcement
The Company shall not commence to sell Listed Securities comprising less than a
Minimum Shareholding following the announcement of a takeover offer or takeover
announcement for the Company. If a takeover bid is announced after a notice is given
but before an agreement is entered into for the sale of the Listed Securities, this clause 3
ceases to operate for those Listed Securities. However, despite clause 3.16, a new
notice under clause 3.13 may be given after the offer period if the takeover bid closes.
3.16 Use by Company of Clause 3
Subject to clause 3.15, this clause 3 may be invoked only once in any twelve month
period after its adoption or re-adoption.
3.17 Notice to New Minority Members
If the Directors determine that a member is a New Minority Member, the Company may
give the member notice in writing stating that the member is a New Minority Member,
specifying the number of shares making up the New Minimum Shareholding, the market
price of those Listed Securities and the date on which the market price was determined
and stating that the Company intends to sell the Listed Securities specified in the notice
in accordance with the provisions of its Constitution. Unless the Directors determine
otherwise, if the Company gives such a notice, all rights of the member to vote and to
receive dividends in respect of the shares specified in the notice are suspended until the
Listed Securities are sold or that member ceases to be a New Minority Member and any
dividends that would, but for this clause 3.17, have been paid to that member must be
held by the Company and paid to that member within 30 days after the earlier of:
(a) the date the Listed Securities specified in the notice are transferred; and
9
(b) the date that the Company ceases to be entitled to sell those Listed Securities
under the sale notice.
4. UNCERTIFICATED HOLDINGS AND ELECTRONIC TRANSFERS
4.1 Electronic or Computerised Holding
The Directors may do anything they consider necessary or desirable and which is
permitted under the Corporations Act and the Listing Rules to facilitate the participation
by the Company in the CHESS System and any other computerised or electronic system
established or recognised by the Corporations Act or the Listing Rules for the purposes of
facilitating dealings in Shares or securities.
4.2 Statement of Holdings
Where the Directors have determined not to issue share certificates or to cancel existing
Share certificates, a Shareholder shall have the right to receive such statements of the
holdings of the Shareholder as are required to be distributed to a Shareholder under the
Corporations Act or the Listing Rules.
4.3 Share Certificates
If the Directors determine to issue a certificate for Shares held by a Shareholder, the
provisions in relation to Share certificates contained in clause 2 shall apply.
4.4 Listing Rules
The Company shall comply with the Listing Rules and the ASX Settlement Operating
Rules in relation to the CHESS System.
5. LIEN
5.1 Lien for Members Debts
The Company has a first and paramount lien on each Share (except where the Share is
a Listed Security and is fully paid up) registered in a Shareholder’s name in respect of all
money owed to the Company by the Shareholder (including any money payable under
clause 5.2 to the extent that the Company has made a payment in respect of a liability
or a requirement referred to in that clause) but not any unpaid call once the Share has
been forfeited under section 254Q of the Corporations Act. The lien extends to
reasonable interest and expenses incurred because the amount is not paid.
5.2 Generally
Whenever any law for the time being of any country, state or place imposes or purports
to impose any immediate or future possible liability upon the Company to make any
payments or empowers any government or taxing authority or governmental official to
require the Company to make any payment in respect of any Shares held either jointly
or solely by any Shareholder, or in respect of any transfer of Shares, or of any dividends,
bonuses or other moneys due or payable or accruing due or which may become due
or payable to such Shareholder by the Company on or in respect of any Shares or for or
on account or in respect of any Shareholder, and whether in consequence of:
(a) the death of such Shareholder;
(b) the non-payment of any income tax or other tax by such Shareholder;
(c) the non-payments of any estate, probate, succession or death, duty or of any
other Duty by the executor or administrator of such Shareholder or by or out of
his estate; or
(d) any other act or thing,
the Company in every case:
(a) shall be fully indemnified by such Shareholder or his executor or administrator
10
from all liability;
(b) shall have a lien upon all dividends, bonuses and other moneys payable in
respect of the Shares held either jointly or solely by this Shareholder for all
moneys paid by the Company in respect of the Shares or in respect of any
dividend, bonus or other money or for an account or in respect of this
Shareholder under or in consequence of any law, together with interest at the
Prescribed Rate from date of payment to date of repayment, and may deduct
or set off against any dividend, bonus or other moneys so paid or payable by
the Company together with interest at the Prescribed Rate;
(c) may recover as a debt due from this Shareholder or his or her executor or
administrator, wherever constituted or situate, any moneys paid by the
Company under or in consequence of any such law and interest on these
moneys at the Prescribed Rate and for the period mentioned above in excess
of any dividend, bonus or other money as mentioned above then due or
payable by the Company to such Shareholder; and
(d) may, subject to the Listing Rules, if any such money be paid or payable by the
Company under any such law, refuse to register a transfer of any Shares by this
Shareholder or his executor or administrator until the money and interest
mentioned above is set off or deducted or, in case the money and interest
exceeds the amount of any dividend, bonus or other money then due or
payable by the Company to the Shareholder, until this excess is paid to the
Company.
Nothing contained in this clause shall prejudice or affect any right or remedy which any
law may confer or purport to confer on the Company, and, as between the Company
and every such Shareholder, his or her executor, administrator and estate, wherever
constituted or situate, any right or remedy which this law shall confer on the Company
shall be enforceable by the Company.
5.3 Exemption
The Directors may at any time exempt a Share wholly or in part from the provisions of this
clause 5.
5.4 Dividends
Whenever the Company has a lien on a Share, the lien extends to all dividends payable
in respect of the Share.
5.5 Sale of Shares
Subject to clause 5.6, the Company may sell, in such manner as the Directors think fit,
any Shares on which the Company has a lien.
5.6 Restrictions on Sale
A Share on which the Company has a lien shall not be sold unless:
(a) the sum in respect of which the lien exists is presently payable; and
(b) the Company has, not less than 14 days before the date of the sale, given to
the registered holder for the time being of the Share or the person entitled to
the Share by reason of the death or bankruptcy of the registered holder a
notice in writing setting out, and demanding payment of, that part of the
amount in respect of which the lien exists as is presently payable.
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5.7 Person Authorised to Sign Transfers
For the purpose of giving effect to a sale of a Share under clause 5.5, the Directors may
authorise a person to transfer the Shares sold to the purchaser of the Shares. The
Company shall register the purchaser as the holder of the Shares comprised in any such
transfer and he or she is not bound to see to the application of the purchase money.
The title of the purchaser to the Shares is not affected by any irregularity or invalidity in
connection with the sale.
5.8 Proceeds of Sale
The proceeds of a sale under clause 5.5 shall be applied by the Company in payment
of that part of the amount in respect of which the lien exists as is presently payable, and
the residue (if any) shall (subject to any like lien for sums not presently payable that
existed upon the Shares before the sale) be paid to the person entitled to the Shares at
the date of the sale.
5.9 Protection of Lien under ASX Settlement Operating Rules
The Company may do all such things as may be necessary or appropriate for it to do
under the ASX Settlement Operating Rules to protect any lien, charge or other right to
which it may be entitled under any law or this Constitution.
5.10 Further Powers re Forfeited Shares and Liens
Where a transfer following the sale of any Shares after forfeiture or for enforcing a lien,
charge or right to which the Company is entitled under any law or under this
Constitution is effected by an ASX Settlement Transfer, the Company may do all things
necessary or desirable for it to do under the ASX Settlement Operating Rules in relation
to that transfer.
6. CALLS ON SHARES
6.1 Calls
(a) The Directors may by resolution make calls on Shareholders of partly paid
Shares to satisfy the whole or part of the debt owing on those Shares provided
that the dates for payment of those Shares were not fixed at the time of issue.
(b) A call shall be deemed to have been made at the time when the resolution of
the Directors authorising the call was passed.
(c) A call may be required or permitted to be paid by instalments.
(d) Failure to send a notice of a call to any Shareholder or the non-receipt of a
notice by any Shareholder does not invalidate the call.
6.2 Payment of Calls
A Shareholder to whom notice of a call is given in accordance with this Constitution
must pay to the Company the amount called in accordance with the notice.
6.3 Quoted Shares
(a) The Directors must not make the date for payment of calls, (Due Date), for
Shareholders who hold quoted partly paid Shares, less than 30 Business Days
and no more than 40 Business Days from the date the Company dispatches
notices to relevant Shareholders that a call is made.
(b) If after a call is made, new Shareholders purchase the same class of Share
subject to the call, or if the holdings of the original Shareholders on whom the
call was made change, Directors must dispatch a notice informing these
Shareholders that a call has been made at least 4 days before the Due Date.
(c) The Company must enter a call payment on the Company register no more
12
than 5 Business Days after the Due Date.
6.4 Unquoted Shares
The Directors must not make the Due Date for Shareholders who hold unquoted partly
paid Shares, less than 5 Business Days from the date the Company dispatches notices to
relevant Shareholders that a call is made.
6.5 Joint Liability
The joint holders of a Share are jointly and severally liable to pay all calls in respect of
the Share.
6.6 Deemed Calls
Any amount that, by the terms of issue of a Share, becomes payable on allotment or at
a fixed date, shall for the purposes of this Constitution be deemed to be a call duly
made and payable, and, in case of non-payment, all the relevant provisions of this
Constitution as to payment of interest and expenses, forfeiture or otherwise apply as if
the amount had become payable by virtue of a call duly made and notified.
6.7 Differentiation between Shareholders
The Directors may, on the issue of Shares, differentiate between the holders as to the
amount of calls to be paid and the times of payment.
6.8 Payments in Advance of Calls
The Directors may accept from a Shareholder the whole or any part of the amount
unpaid on a Share even if no part of that amount has been called up, in which case the
Directors shall nominate whether the amount so paid is to be treated as capital or a
loan to the Company by the Shareholder, and:
(a) if the amount paid is nominated to be capital, it shall be deemed as from the
date of the nomination to have been applied in paying up (so far as it will
extend) the unpaid balance of the total issue price of the Share, but the
dividend entitlement attaching to the Share shall remain as it was prior to the
payment so made until there is a call in respect of the Share under this clause 6
of an amount equal to or greater than the amount so paid; or
(b) if the amount paid is nominated to be a loan to the Company, it shall carry
interest at a rate, not exceeding the Prescribed Rate, as is agreed between the
Directors and the Shareholder, shall not be repayable unless the Directors so
determine, shall not confer on the Shareholder any rights attributable to
subscribed capital, and shall, unless so repaid, be applied in payment of calls
on the Share as and when the calls become due.
6.9 Outstanding Moneys
Any moneys payable in respect of a call made in accordance with this Constitution
which remain outstanding shall from and including the day for payment until the date
payment is received bear interest at the Prescribed Rate.
6.10 Revocation/Postponement or Extension
The Directors may revoke or postpone a call or extend time for payment in accordance
with the Listing Rules and/or the Corporations Act, if revocation or postponement is not
prohibited by either.
6.11 Compliance with Listing Rules and Corporations Act
The Company shall comply with the Listing Rules and the Corporations Act in relation to
calls. All Listing Rule requirements in relation to calls are not covered in this Constitution.
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6.12 Waive
The Directors may, to the extent the law permits, waive or compromise all or part of any
payment due to the Company under the terms of issue of a Share under this clause 6.
7. FORFEITURE OF SHARES
7.1 Failure to Pay Call
If a Shareholder fails to pay a call or instalment of a call on the day appointed for
payment of the call or instalment, the Directors may, at any time after this day during
the time any part of the call or instalment remains unpaid (but subject to this clause 7.1)
serve a notice on such Shareholder requiring payment of so much of the call or
instalment as is unpaid, together with any interest that has accrued and all costs and
expenses incurred by the Company as a result of the non-payment. The notice shall
name a further day being not less than 14 days after the date of notice on or before
which the payment required by the notice is to be made and shall state that, in the
event of non-payment at or before the time appointed, the Shares in respect of which
the call was made will be liable to be forfeited.
7.2 Forfeiture
If the requirements of a notice served under clause 7.1 are not complied with, any Share
in respect of which a call is unpaid at the expiration of 14 days after the day for its
payment may be forfeited by a resolution of the Directors to that effect. Such a
forfeiture shall include all dividends and other distributions declared in respect of the
forfeited Shares and not actually paid or distributed before the forfeiture.
7.3 Sale of Forfeited Shares
Subject to the Corporations Act and the Listing Rules, a forfeited Share may be sold or
otherwise disposed of on the terms and in the manner that the Directors determine and,
at any time before a sale or disposition, the forfeiture may be cancelled on the terms
the Directors determine.
7.4 Continuing Liability
A person whose Shares have been forfeited ceases to be a Shareholder in respect of
the forfeited Shares, but remains liable to pay the Company all money that, at the date
of forfeiture, was payable by him to the Company in respect of the Shares (including
interest at the Prescribed Rate from the date of forfeiture on the money for the time
being unpaid if the Directors decide to enforce payment of the interest), but his or her
liability ceases if and when the Company receives payment in full of all the money
(including interest) payable in respect of the Shares.
7.5 Officer’s Statement Prima Facie Evidence
A statement in writing declaring that the person making the statement is a Director or a
Secretary of the Company, and that a Share in the Company has been duly forfeited
on a date stated in the statement, is prima facie evidence of the facts stated in the
statement as against all persons claiming to be entitled to the Share.
7.6 Procedures
The Company may receive the consideration (if any) given for a forfeited Share on any
sale or disposition of the Share, execute a transfer of the Share in favour of the person to
whom the Share is sold or disposed of and take all other steps necessary or desirable to
transfer or dispose of those shares to the relevant transferee. Upon the execution of the
transfer, the transferee shall be registered as the holder of the Share and is not bound to
see to the application of any money paid as consideration. The title of the transferee to
the Share is not affected by any irregularity or invalidity in connection with the forfeiture,
sale or disposal of the Share.
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7.7 Listing Rules and ASX Settlement Operating Rules
The Company shall comply with the Listing Rules with respect to forfeited Shares and
may do all such things as may be necessary or appropriate for it to do under the ASX
Settlement Operating Rules to protect any lien, charge or other right to which it may be
entitled under any law or this Constitution.
7.8 Waive
The Directors may:
(a) exempt a Share from all or part of this clause 7;
(b) waive or compromise all or part of any payment due to the Company under
this clause 7; and
(c) before a forfeited Share has been sold, reissued and otherwise disposed of,
cancel the forfeiture on the conditions they decide.
8. TRANSFER OF SHARES
8.1 Form of Transfer
Subject to this Constitution, Shareholders may transfer any Share held by them by:
(a) an ASX Settlement Transfer or any other method of transferring or dealing in
Shares introduced by ASX or operated in accordance with the ASX Settlement
Operating Rules or Listing Rules and in any such case recognised under the
Corporations Act; or
(b) an instrument in writing in any usual or common form or in any other form that
the Directors approve.
8.2 CHESS Transfers
(a) The Company must comply with all obligations imposed on the Company
under the Corporations Act, the Listing Rules and the ASX Settlement Operating
Rules in respect of an ASX Settlement Transfer or any other transfer of Shares.
(b) Notwithstanding any other provision in this Constitution, the Company must not
prevent, delay or interfere with the registration of an ASX Settlement Transfer or
any other transfer of Shares.
8.3 Participation in CHESS
The Directors may do anything they consider necessary or desirable and which is
permitted under the Corporations Act, the Listing Rules and the ASX Settlement
Operating Rules to facilitate participation by the Company in any system established or
recognised by the Corporations Act and the Listing Rules or the ASX Settlement
Operating Rules in respect of transfers of or dealings in marketable securities.
8.4 Registration Procedure
Where an instrument of transfer referred to in clause 8.1(b) is to be used by a
Shareholder to transfer Shares, the following provisions apply:
(a) the instrument of transfer must be executed by or on behalf of both the
transferor and the transferee unless it is a sufficient transfer of marketable
securities within the meaning of the Corporations Act and any Duty duly paid if
required by law;
(b) the instrument of transfer shall be left at the Registered Office for registration
accompanied by the certificate for the Shares to be transferred (if any) and
such other evidence as the Directors may require to prove the title of the
transferor and his right to transfer the shares;
(c) subject to clause 33, a reasonable fee may be charged on the registration of a
15
transfer of Shares or other securities; and
(d) on registration of a transfer of Shares, the Company must cancel the old
certificate (if any).
8.5 Power to Refuse to Register
The Directors may refuse to register any transfer of Shares (other than an ASX Settlement
Transfer) where:
(a) the Listing Rules permit the Company to do so;
(b) the Listing Rules require the Company to do so; or
(c) the transfer is a transfer of Restricted Securities which is or might be in breach of
the Listing Rules or any escrow agreement entered into by the Company in
relation to such Restricted Securities pursuant to the Listing Rules.
Where the Directors refuse to register a transfer in accordance with this clause, they shall
send notice of the refusal and the precise reasons for the refusal to the transferee and
the lodging broker (if any) in accordance with the Listing Rules.
8.6 Closure of Register
Subject to the Listing Rules and the ASX Settlement Operating Rules, the Register of
Shareholders may be closed during such time as the Directors may determine, not
exceeding 30 days in each calendar year or any one period of more than
5 consecutive Business Days.
8.7 Retention of Transfers by Company
All instruments of transfer which are registered will be retained by the Company, but any
instrument of transfer which the Directors decline or refuse to register (except in the case
of fraud) shall on demand be returned to the transferee.
8.8 Power to suspend registration of transfers
The Directors may suspend the registration of transfers at any times, and for any periods,
permitted by the ASX Settlement Operating Rules that they decide.
8.9 Powers of Attorney
Any power of attorney granted by a Shareholder empowering the recipient to transfer
Shares which may be lodged, produced or exhibited to the Company or any Officer of
the Company will be taken and deemed to continue and remain in full force and
effect, as between the Company and the grantor of that power, and the power of
attorney may be acted on, until express notice in writing that it has been revoked or
notice of the death of the grantor has been given and lodged at the Office or at the
place where the Register of Shareholders is kept.
8.10 Other Securities
The provisions of this clause 8 shall apply, with necessary alterations, to any other Listed
Securities for the time being issued by the Company.
8.11 Branch Register
The Company may cause a Register of Shareholders to be kept in any place (including
without limitation, a branch register) and the Directors may from time to time make such
provisions as they (subject to the Corporations Act, the Listing Rules and the ASX
Settlement Operating Rules) may think fit with respect to the keeping of any such
Register.
8.12 Compliance with ASX Settlement Operating Rules
The Company shall comply with the ASX Settlement Operating Rules and the Listing
Rules in relation to all matters covered by those rules.
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8.13 Issuer Sponsored Subregister
The Company may establish and maintain an issuer sponsored subregister in
compliance with any relevant provisions of the Corporations Act, the Listing Rules or the
ASX Settlement Operating Rules.
8.14 Transferor Holds Shares until Registration of Transfer
A transferor of Shares remains the registered holder of the Shares transferred until an ASX
Settlement Transfer has taken effect in accordance with the ASX Settlement Operating
Rules or the transfer is registered in the name of the transferee and is entered in the
Register of Shareholders in respect of them, whichever is the earlier.
8.15 Waive
The Directors may, to the extent the law permits, waive any of the requirements of this
clause 8 and prescribe alternative requirements instead.
9. TRANSMISSION OF SHARES
9.1 Death of Shareholder Leaving a Will
On the death of a Shareholder who leaves a will appointing an executor, the executor
shall be entitled as from the date of death, and on behalf of the deceased
Shareholder's estate, to the same dividends and other advantages and to the same
rights whether in relation to meetings of the Company, or voting or otherwise, as the
Shareholder would have been entitled to if he or she had not died, whether or not
probate of the will has been granted. Nevertheless, if probate of the will is granted to a
person or persons other than the executor first referred to in this clause 9, his or her
executor's rights shall cease, and these rights shall only be exercisable by the person or
persons to whom probate is granted as provided in clauses 9.2 and 9.3. The estate of a
deceased Shareholder will not be released from any liability to the Company in respect
of the Shares.
9.2 Death or Bankruptcy of Shareholder or the Shareholder becomes of unsound mind
Subject to clause 9.1, where the registered holder of a Share dies, becomes bankrupt, or
the Shareholder becomes of unsound mind, his or her personal representative or the
trustee of his or her estate, as the case may be, shall be entitled upon the production of
such information as is properly required by the Directors, to the same dividends and
other advantages, and to the same rights (whether in relation to meetings of the
Company, or to voting or otherwise), as the registered holder would have been entitled
to if he or she had not died or become bankrupt.
9.3 Registration by Transmission or to Beneficiary
A person becoming entitled to a Share in consequence of the death or, subject to the
Bankruptcy Act 1966, the bankruptcy of a Shareholder or the Shareholder becoming of
an unsound mind may, upon information being produced that is properly required by
the Directors, elect by written notice to the Company either to be registered himself or
herself as holder of the Share or to have some other person nominated by the person
registered as the transferee of the Share. If this person elects to have another person
registered, he or she shall execute a transfer of the Share to that other person.
9.4 Limitations to Apply
All the limitations, restrictions and provisions of this Constitution relating to the right to
transfer Shares and the registration of a transfer of Shares are applicable to any notice
or transfer as if the death, bankruptcy of the Shareholder or on the Shareholder
becoming of unsound mind had not occurred and the notice or transfer were a transfer
signed by that Shareholder.
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9.5 Death of a Joint Holder
In the case of the death of a Shareholder who was a joint holder, the survivor or survivors
shall be the only persons recognised by the Company as having any title to the
deceased's interest in the Shares, but this clause 9.5 does not release the estate of a
deceased joint holder from any liability in respect of a Share that had been jointly held
by this person with one or more other persons.
9.6 Joint Personal Representatives
Where two or more persons are jointly entitled to any Share in consequence of the
death of the registered holder, they shall, for the purpose of this Constitution, be
deemed to be joint holders of the Share.
9.7 ASX Settlement Transfer
In the case of an ASX Settlement Transfer the provisions of this clause 9 are subject to
any obligation imposed on the Company or the person entitled to the relevant Shares
on the death or bankruptcy of a member by the Listing Rules, the ASX Settlement
Operating Rules or any law.
9.8 Joint Holders
If more than three persons are registered as holders of Shares in the Company in the
Register of Shareholders (or a request is made to register more than three persons), then
only the first three persons will be regarded as holders of Shares in the Company and all
other names will be disregarded by the Company for all purposes.
10. CHANGES TO CAPITAL STRUCTURE
10.1 Alterations to Capital
Subject to the Corporations Act and the Listing Rules, the Company may, by ordinary
resolution:
(a) issue new Shares of such amount specified in the resolution;
(b) consolidate and divide all or any of its Shares into Shares of larger amount than
its existing Shares;
(c) subject to the Listing Rules, sub-divide all or any of its Shares into Shares of
smaller amount, but so that in the sub-division the proportion between the
amount paid and the amount (if any) unpaid on each such Share of a smaller
amount remains the same; and
(d) cancel Shares that, at the date of the passing of the resolution, have not been
taken or agreed to be taken by any person or have been forfeited and,
subject to the Corporations Act, reduce the amount of its share capital by the
amount of the Shares so cancelled,
and the Directors may take such action as the Directors think fit to give effect to any
resolution altering the Company’s share capital.
10.2 Reduction of Capital
Subject to the Corporations Act and the Listing Rules, the Company may reduce its
share capital in any way including, but not limited to, distributing to shareholders
securities of any other body corporate and, on behalf of the shareholders, consenting
to each shareholder becoming a member of that body corporate and agreeing to be
bound by the constitution of that body corporate.
10.3 Buy-Backs
(a) In this clause “Buy-Back Provisions” means the provisions of Part 2J.1 Division 2 of
the Corporations Act.
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(b) The Company may, subject to the Corporations Act and the Listing Rules and in
accordance with the Buy-Back Provisions, purchase its own Shares on such
terms and at such times as may be determined by the Directors from time to
time.
(c) The Company may give financial assistance to any person or entity for the
purchase of its own Shares in accordance with the Buy-Back Provisions on such
terms and at such times as may be determined by the Directors from time to
time.
10.4 Fractions
If as a result of any issue of shares or any alteration to the Company’s share capital any
Shareholders would become entitled to fractions of a share, the Directors may deal with
those fractions as the Directors think fit including by:
(a) ignoring fractional entitlements or making cash payments in lieu of fractional
entitlements;
(b) appointing a trustee to deal with any fractions on behalf of Shareholders; and
(c) rounding up each fractional entitlement to the nearest whole share by
capitalising any amount available for capitalisation under clause 23.1 even
though only some of the Shareholders participate in the capitalisation.
11. WRITTEN RESOLUTIONS
Where the Company has only one Shareholder, to the extent permitted by law, a
resolution in writing signed by that Shareholder, shall be as valid and effectual as if it
had been passed at a meeting of Shareholders duly convened and held. A facsimile
transmission, an email bearing the signature of the Shareholder or an email of the
Shareholder addressed to an officer of the Company confirming agreement with the
resolution and undertaking to sign the resolution as soon as practicable shall be
deemed to be a document in writing signed by the Shareholder.
12. GENERAL MEETINGS
12.1 Convening of General Meetings of Shareholders by Directors’ Resolution
The Directors may, by a resolution passed by a majority of Directors, convene a general
meeting of Shareholders in accordance with this clause 11 and the requirements of the
Corporations Act.
12.2 Change of place or postponement of a General Meeting of Shareholders
The Directors may, subject to the Corporations Act and the Listing Rules, postpone a
meeting of Shareholders or change the place for a general meeting of Shareholders by
giving written notice to ASX. If a meeting of Shareholders is postponed for one month or
more, the Company must give new notice of the postponed meeting. The only business
that may be transacted at a general meeting the holding of which is postponed is the
business specified at the original meeting.
12.3 Convening of General Meetings of Shareholders by a Director or requisition
Any Director may, whenever he or she thinks fit, convene a general meeting of
Shareholders, and a general meeting shall also be convened on requisition as is
provided for by the Corporations Act, or in default, may be convened by such
requisitions as empowered to do so by the Corporations Act. If there are no Directors for
the time being, a Secretary may convene a general meeting of Shareholders for the
purpose of enabling the election of Directors but for no other purpose. A general
meeting may be held at two or more venues simultaneously using any technology that
gives the Shareholders as a whole a reasonable opportunity to participate.
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12.4 Cancellation of a General Meeting of Shareholders
(a) A general meeting of Shareholders convened by the Directors in accordance
with clause 12.1 may be cancelled by a resolution passed by a majority of
Directors.
(b) A general meeting of shareholders convened on a requisition as provided for
by the Corporations Act, may, if the application for requisition is withdrawn in
writing, be cancelled by a resolution passed by a majority of Directors.
(c) Notice of the cancellation of a general meeting of Shareholders must be given
to the Shareholders in accordance with clause 26, but notice of such
cancellation must be given to each Shareholder not less than two (2) days prior
to the date on which the meeting was proposed to be held.
12.5 Notice
A notice of a general meeting shall be given in accordance with the requirements of
the Corporations Act, clause 26 and the Listing Rules, and:
(a) must specify the place, the day and the time of the meeting;
(b) must state the general nature of the business to be transacted at the meeting;
(c) must, if a special resolution is proposed at the meeting, set out an intention to
propose the special resolution and state the resolution;
(d) must include such statements about the appointment of proxies as are
required by the Corporations Act;
(e) must specify a place and fax number for the purposes of receipt of proxy
appointments; and
(f) may specify an electronic address for the purposes of receipt of proxy
appointments,
and shall include any other information required to be included in the notice by the
Listing Rules. The non-receipt of a notice of a general meeting by a Shareholder or the
accidental omission to give this notice to a Shareholder shall not invalidate any
resolution passed at the meeting.
12.6 Irregularities in giving notice
A person who attends any general meeting waives any objection that the person may
have to any failure to give notice or any other irregularity in the notice of that meeting
unless that person objects to the holding of the meeting at the start of the meeting. The
accidental failure to give notice of a general meeting to, or the non-receipt of the
notice by, any person entitled to receive notice of that meeting does not invalidate the
proceedings at the meeting or any resolution passed at that meeting.
12.7 Business at General Meeting
Subject to the Corporations Act, only matters that appear in a notice of meeting shall
be dealt with at a general meeting or an annual general meeting, as the case may be.
12.8 Notice to Home Branch
(a) The Company shall notify the Home Branch of any meeting at which Directors
are to be elected at least 5 Business Days before the closing day for receipt of
nominations for Directors, and in any other case (other than a meeting to pass
a special resolution) at least 10 Business Days before the meeting is held, and in
the case of a meeting convened to pass a special resolution, at least 15
Business Days before the meeting is held. All notices convening meetings shall
specify the place, date and hour of the meeting, and shall set out all
resolutions to be put to the meeting.
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(b) The Company shall notify the Home Branch as soon as is practicable after any
general meeting in the case of special business as to whether or not the
resolutions were carried and in the case of ordinary business as to which of
those resolutions were not carried or were amended or were withdrawn.
12.9 Annual General Meeting
An annual general meeting shall be held in accordance with the requirements of the
Corporations Act.
13. PROCEEDINGS AT GENERAL MEETINGS
13.1 Quorum
No business, the election of a chairman and the adjournment of the meeting, shall be
transacted at any general meeting unless a quorum is present comprising two
Shareholders present in person, by proxy, attorney or Representative. For the purpose of
determining whether a quorum is present, a person attending as a proxy, attorney or
Representative, shall be deemed to be the Shareholder present in person. If a quorum is
not present within 30 minutes after the time appointed for a general meeting, the
meeting, if convened upon a requisition shall be dissolved, but in any other case, it shall
stand adjourned to a date and at the time and place to be fixed by the Directors. If at
such adjourned meeting a quorum is not present within 30 minutes after the time
appointed for the adjourned meeting, the meeting is dissolved.
13.2 Persons Entitled to Attend a General Meeting
The persons entitled to attend a general meeting shall be:
(a) Shareholders, in person, by proxy, attorney or Representative;
(b) Directors and public officers of the Company;
(c) the Company's auditor; and
(d) any other person or persons as the chairman may approve.
13.3 Refusal of Admission to Meetings
The chairman of a general meeting may refuse admission to a person, or require a
person to leave and not return to, a meeting if the person:
(a) refuses to permit examination of any article in the person’s possession;
(b) is in possession of any:
(i) electronic or broadcasting or recording device;
(ii) placard or banner; or
(iii) other article,
which the chairman considers to be dangerous, offensive or liable to cause
disruption;
(c) causes any disruption to the meeting; or
(d) is not entitled to attend the meeting under the Corporations Act or this
Constitution.
The Chairman may delegate the powers conferred by this clause 13.3 to any person.
Nothing in this clause limits the powers conferred on the chairman by law.
13.4 Insufficient room
The chairman may arrange for any persons attending the meeting who the chairman
considers cannot reasonably be accommodated in the place where the meeting is to
take place to attend or observe the meeting from a separate place using any
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technology that gives members present at the meeting as a whole a reasonable
opportunity to participate in the meeting.
13.5 Chairman
The person elected as the chairman of the Directors' meeting under clause 16.9 shall, if
willing, preside as chairman at every general meeting. Where a general meeting is held
and a chairman has not been elected under clause 16.9 or the chairman or, in his
absence, the vice-chairman is not present within 15 minutes after the time appointed for
holding of the meeting or is unwilling to act:
(a) the Directors present may elect a chairman of the meeting; or
(b) if no chairman is elected in accordance with subsection (a), the Shareholders
present shall elect one of their number to be the acting chairman of the
meeting.
13.6 Vacating Chair
At any time during a meeting and in respect of any specific item or items of business,
the chairman may elect to vacate the chair in favour of another person nominated by
the chairman (which person must be a Director unless no Director is present or willing to
act). That person is to be taken to be the chairman and will have all the power of the
chairman (other than the power to adjourn the meeting), during the consideration of
that item of business or those items of business.
13.7 Disputes Concerning Procedure
If there is a dispute at a general meeting about a question of procedure, the chairman
may determine the question.
13.8 General Conduct
The general conduct of each general meeting of the Company and the procedures to
be adopted at the meeting will be determined by the chairman, including the
procedure for the conduct of the election of Directors.
13.9 Adjournment
The chairman may adjourn the meeting from time to time and from place to place, but
no business shall be transacted on the resumption of any adjourned meeting other than
the business left unfinished at the meeting from which the adjournment took place. A
poll cannot be demanded on any resolution concerning the adjournment of a general
meeting except by the chairman.
13.10 Notice of Resumption of Adjourned Meeting
When a meeting is adjourned for 30 days or more, notice of the resumption of the
adjourned meeting shall be given in the same manner as for the original meeting, but
otherwise, it is not necessary to give any notice of any adjournment or of the business to
be transacted on the resumption of the adjourned meeting.
13.11 How resolutions are decided
Subject to the requirements of the Corporations Act, a resolution is taken to be carried if
a majority of the votes cast on the resolution are in favour of it.
13.12 Casting Vote
In the case of an equality of votes, the chairman of the meeting shall have a second or
casting vote.
13.13 Voting Rights
Subject to any rights or restrictions for the time being attached to any class or classes of
Shares, at meetings of Shareholders or classes of Shareholders:
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(a) each Shareholder entitled to vote may vote in person or by proxy, attorney or
Representative;
(b) on a show of hands, every person present who is a Shareholder or a proxy,
attorney or Representative of a Shareholder has one vote (even though he or
she may represent more than one member); and
(c) on a poll, every person present who is a Shareholder or a proxy, attorney or
Representative of a Shareholder shall, in respect of each fully paid Share held
by him, or in respect of which he is appointed a proxy, attorney or
Representative, have one vote for the Share, but in respect of partly paid
Shares, shall have such number of votes being equivalent to the proportion
which the amount paid (not credited) is of the total amounts paid and
payable in respect of those Shares (excluding amounts credited).
13.14 Voting - Show of Hands
At any general meeting a resolution put to the vote of the meeting shall be decided on
a show of hands unless a poll is demanded in accordance with clause 13.16.
13.15 Results of Voting
Unless a poll is so demanded, a declaration by the chairman that a resolution has on a
show of hands been carried or carried unanimously or by a particular majority, or lost,
and an entry to that effect in the book containing the minutes of the proceedings of
general meetings of the Company, is conclusive evidence of the fact without proof of
the number or proportion of the votes recorded in favour of or against the resolution.
13.16 Poll
A poll may be demanded before or immediately upon the declaration of the result of
the show of hands by:
(a) the chairman of the general meeting;
(b) at least 5 Shareholders present in person or by proxy, attorney or
Representative having the right to vote on the resolution; or
(c) any one or more Shareholders holding not less than 5% of the total voting rights
of all Shareholders having the right to vote on the resolution.
13.17 Manner of Taking Poll
If a poll is duly demanded, it shall be taken in such manner and either at once or after
an interval or adjournment or otherwise as the chairman directs, and the result of the
poll shall be the resolution of the meeting at which the poll was demanded. A poll
demanded on the election of a chairman or on a question of adjournment shall be
taken forthwith.
13.18 Meeting May Continue
A demand for a poll shall not prevent the continuation of the meeting for the
transaction of other business.
13.19 Voting by Joint Holders
In the case of joint holders of Shares, the vote of the senior who tenders a vote, whether
in person or by proxy, attorney or Representative, shall be accepted to the exclusion of
the votes of the other joint holders and, for this purpose, seniority shall be determined by
the order in which the names stand in the Register of Shareholders.
13.20 Shareholder under Disability
If a Shareholder is of unsound mind or is a person whose person or estate is liable to be
dealt with in any way under the law relating to mental health, his committee or trustee
or any other person that properly has the management of his estate may exercise any
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rights of the Shareholder in relation to a general meeting as if the committee, trustee or
other person were the Shareholder.
13.21 Payment of Calls
A Shareholder is not entitled to any vote at a general meeting unless all calls presently
payable by him in respect of Shares have been paid. Nothing in this clause prevents
such a Shareholder from voting at a general meeting in relation to any other Shares
held by that Shareholder provided all calls and other sums payable by him have been
paid on those other Shares.
13.22 Objection to Voting
An objection may be raised to the qualification of a voter only at the meeting or
adjourned meeting at which the vote objected to is given or tendered. This objection
shall be referred to the chairman of the meeting, whose decision shall be final. A vote
not disallowed pursuant to such an objection is valid for all purposes.
13.23 Restrictions on voting
A Shareholder is not entitled to vote on a resolution at a general meeting if they are
prevented from doing so by the Corporations Act, the Listing Rules or this Constitution.
The Company must disregard any vote purported to be cast on a resolution by a
member or a Representative, proxy or attorney in breach of this clause 13.23.
13.24 Proxies
A Shareholder who is entitled to attend and cast a vote at a general meeting may
appoint a person as the Shareholder’s proxy to attend and vote for the Shareholder at
the general meeting. The appointment may specify the proportion or number of votes
that the proxy may exercise. Each Shareholder may appoint a proxy. A Shareholder
who is entitled to cast 2 or more votes at the meeting may appoint 2 proxies. If the
Shareholder appoints 2 proxies and the appointment does not specify the proportion of
votes that the proxy may exercise, each proxy may exercise half the votes. Any fraction
of votes resulting from the application of this clause 13.23 shall be disregarded. An
instrument appointing a proxy:
(a) shall be in writing under the hand of the appointor or of his attorney, or, if the
appointor is a corporation, executed in accordance with the Corporations Act;
(b) may specify the manner in which the proxy is to vote in respect of a particular
resolution and, where an instrument of proxy so provides, the proxy is not
entitled to vote on the resolution except as specified in the instrument;
(c) shall be deemed to confer authority to demand or join in demanding a poll;
(d) shall be in such form as the Directors determine and which complies with
Division 6 of Part 2G.2 of the Corporations Act;
(e) shall not be valid unless the original instrument and the power of attorney or
other authority (if any) under which the instrument is signed, or a copy or
facsimile which appears on its face to be an authentic copy of that proxy,
power or authority, is or are deposited or sent by facsimile transmission to the
Registered Office, or at such other place (being the place or being in the
reasonable proximity of the place at which the meeting is to be held) as is
specified for that purpose in the notice convening the meeting (with any Duty
paid where necessary), by the time (being not less than 48 hours) prior to the
commencement of the meeting (or the resumption of the meeting if the
meeting is adjourned and notice is given in accordance with clause 13.10) as
shall be specified in the notice convening the meeting (or the notice under
clause 13.10, as the case may be); and
(f) shall comply with the Listing Rules.
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13.25 Electronic Appointment of Proxy
For the purposes of clause 13.23, a proxy appointment received at an electronic
address will be taken to be signed by the appointor if:
(a) a personal identification code allocated by the Company to the appointor has
been input into the appointment;
(b) the appointment has been verified in another manner approved by the
Directors; or
(c) is otherwise authenticated in accordance with the Corporations Act.
13.26 Name of proxy
A proxy form issued by the Company must allow for the insertion of the name of the
person to be primarily appointed as proxy and may provide that, in circumstances and
on conditions specified in the form that are not inconsistent with this Constitution, the
chairman of the relevant meeting (or another person specified in the form) is appointed
as proxy.
13.27 Incomplete proxy appointment
Where an instrument appointing a proxy has been received by the Company within the
period specified in clause 13.24(e) and the Company considers that the instrument has
not been duly executed or authenticated or is otherwise incomplete (other than by
reason only that the name or office of the proxy has not been completed), the board,
in its discretion, may:
(a) return the instrument appointing the proxy to the appointing Shareholder; and
(b) request that the appointing Shareholder take such steps to complete, sign,
execute or authenticate the proxy instrument within the time period notified to
the appointing Shareholder.
13.28 No right to speak or vote if appointing Shareholder present
The appointment of a proxy is not revoked if the appointing Shareholder is present in
person or by Representative at a general meeting but the proxy must not speak or vote
at the meeting while the appointing Shareholder is so present.
13.29 Rights where 2 proxies or attorneys are appointed
Where a Shareholder appoints 2 proxies or attorneys to vote at the same general
meeting:
(a) on a show of hands, if more than one proxy or attorney attends, neither may
vote; and
(b) on a poll, each proxy or attorney may only exercise votes in respect of those
shares or voting rights the proxy or attorney represents.
13.30 More than 2 proxies or attorneys appointed
If the Company receives notice of the appointment of a proxy or attorney in
accordance with this Constitution that results in more than 2 proxies or attorneys being
entitled to act at a general meeting then in determining which proxies or attorneys may
act at that meeting:
(a) a proxy or attorney appointed for that particular meeting may act ahead of
any proxy or attorney whose appointment is a standing appointment; and
(b) subject to clause 13.30(a) the proxies or attorneys whose appointments are
received by the Company most recently in time may act.
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13.31 Proxy Votes
A vote given in accordance with the terms of an instrument of proxy or attorney is valid
notwithstanding the previous death or unsoundness of mind of the principal, the
revocation of the instrument (or the authority under which the instrument was executed)
or the transfer of the Share in respect of which the instrument or power is given, if no
intimation in writing of the death, unsoundness of mind, revocation or transfer has been
received by the Company at the Registered Office before the commencement of the
meeting or adjourned meeting at which the instrument is used or the power is exercised.
13.32 Representatives of Corporate Shareholders
A body corporate (the appointor) that is a Shareholder may authorise, in accordance
with section 250D of the Corporations Act, by resolution of its Directors or other
governing body, such person or persons as it may determine to act as its Representative
at any general meeting of the Company or of any class of Shareholders. A person so
authorised shall be entitled to exercise all the rights and privileges of the appointor as a
Shareholder. When a Representative is present at a general meeting of the Company,
the appointor shall be deemed to be personally present at the meeting unless the
Representative is otherwise entitled to be present at the meeting. The original form of
appointment of a Representative, a certified copy of the appointment, or a certificate
of the body corporate evidencing the appointment of a Representative is evidence of
a Representative having been appointed.
13.33 More than one Representative present
If more than one Representative appointed by a Shareholder (and in respect of whose
appointment the Company has not received notice of revocation) is present at a
general meeting then:
(a) a Representative appointed for that particular meeting may act to the
exclusion of a Representative whose appointment is a standing appointment;
and
(b) subject to clause 13.33(a), the Representative appointed most recently in time
may act to the exclusion of a Representative appointed earlier.
13.34 Rights of Representatives, proxies and attorneys
Subject to clauses 13.23 to 13.33, unless the terms of appointment of a Representative,
proxy or attorney provide otherwise, the Representative, proxy or attorney:
(a) has the same rights to speak, demand a poll, join in the demanding of a poll or
act generally at the meeting as the appointing Shareholder would have if the
Shareholder had been present;
(b) is taken to have authority to vote on any amendment moved to the proposed
resolutions, any motion that the proposed resolutions not be put or any similar
motion and any procedural resolution, including any resolution for the election
of a chairman or the adjournment of a general meeting; and
(c) may attend and vote at any postponed or adjourned meeting unless the
appointing Shareholder gives the Company notice in writing to the contrary
not less than 48 hours before the time to which the holding of the meeting has
been postponed or adjourned.
This clause 13.34 applies even if the terms of appointment of a Representative, proxy or
attorney refers to specific resolutions or to a specific meeting to be held at a specific
time.
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14. THE DIRECTORS
14.1 Number of Directors
The Company shall at all times have at least 3 Directors. The number of Directors shall
not exceed 9. Subject to the Corporations Act, the Company may, by ordinary
resolution, increase or reduce the number of Directors and may also determine in what
rotation the increased or reduced number is to go out of office. Subject to any
resolution of the Company determining the maximum and minimum numbers of
Directors, the Directors may from time to time determine the respective number of
Executive and Non Executive Directors.
14.2 Rotation of Directors
Subject to clause 18.4, at the Company's annual general meeting in every year, one-
third of the Directors for the time being, or, if their number is not a multiple of 3, then the
number nearest one-third (rounded upwards in case of doubt), shall retire from office,
provided always that no Director except a Managing Director shall hold office for a
period in excess of 3 years, or until the third annual general meeting following his or her
appointment, whichever is the longer, without submitting himself for re-election. The
Directors to retire at an annual general meeting are those who have been longest in
office since their last election, but, as between persons who became Directors on the
same day, those to retire shall (unless they otherwise agree among themselves) be
determined by drawing lots. A retiring Director is eligible for re-election. An election of
Directors shall take place each year.
In determining the number of Directors to retire, no account is to be taken of:
(a) a Director who only holds office until the next annual general meeting pursuant
to clause 14.4; and/ or
(b) a Managing Director,
each of whom are exempt from retirement by rotation. However, if more than one
Managing Director has been appointed by the Directors, only one of them (nominated
by the Directors) is entitled to be excluded from any determination of the number of
Directors to retire and/or retirement by rotation.
14.3 Election of Directors
Subject to the provisions of this Constitution, the Company may elect a person as a
Director by resolution passed in general meeting. A Director elected at a general
meeting is taken to have been elected with effect immediately after the end of that
general meeting unless the resolution by which the Director was appointed or elected
specifies a different time. No person other than a Director seeking re-election shall be
eligible for election to the office of Director at any general meeting unless the person or
some Shareholder intending to propose his or her nomination has, at least 30 Business
Days before the meeting, left at the Registered Office a notice in writing duly signed by
the nominee giving his or her consent to the nomination and signifying his or her
candidature for the office or the intention of the Shareholder to propose the person.
Notice of every candidature for election as a Director shall be given to each
Shareholder with or as part of the notice of the meeting at which the election is to take
place. The Company shall observe the requirements of the Corporations Act with
respect to the election of Directors. If the number of nominations exceeds the
vacancies available having regard to clause 14.1, the order in which the candidates
shall be put up for election shall be determined by the drawing of lots supervised by the
Directors and once sufficient candidates have been elected to fill up the vacancies
available, the remaining candidates shall be deemed defeated without the need for
votes to be taken on their election.
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14.4 Additional Directors
The Directors may at any time appoint a person to be a Director, either to fill a casual
vacancy or as an addition to the existing Directors, but so that the total number of
Directors does not at any time exceed the maximum number specified by this
Constitution. Any Director so appointed holds office only until the next following annual
general meeting and is then eligible for re-election but shall not be taken into account
in determining the Directors who are to retire by rotation (if any) at that meeting.
14.5 Removal of Director
The Company may by resolution remove any Director before the expiration of his period
of office, and may by resolution appoint another person in his place. The person so
appointed is subject to retirement at the same time as if he had become a Director on
the day on which the Director in whose place he is appointed was last elected a
Director.
14.6 Vacation of Office
The office of Director shall automatically become vacant if the Director:
(a) ceases to be a Director by virtue of section 203D or any other provision of the
Corporations Act;
(b) becomes bankrupt or insolvent or makes any arrangement or composition with
his creditors generally;
(c) becomes prohibited from being a Director by reason of any order made under
the Corporations Act;
(d) becomes of unsound mind or a person whose person or estate is liable to be
dealt with in any way under the law relating to mental health;
(e) resigns his or her office by notice in writing to the Company;
(f) is removed from office under clause 14.5; or
(g) is absent for more than 6 months, without permission of the Directors, from
meetings of the Directors held during that period.
14.7 Remuneration
The Directors shall be paid out of the funds of the Company, by way of remuneration for
their services as Directors. Subject to clause 14.8 below, the total aggregate fixed sum
per annum to be paid to the Directors (excluding salaries of executive Directors) from
time to time will not exceed the sum determined by the Shareholders in general
meeting and the total aggregate fixed sum will be divided between the Directors as the
Directors shall determine and, in default of agreement between them, then in equal
shares. No non-executive Director shall be paid as part or whole of his remuneration a
commission on or a percentage of profits or a commission or a percentage of operating
revenue, and no executive Director shall be paid as whole or part of his remuneration a
commission on or percentage of operating revenue. The remuneration of a Director
shall be deemed to accrue from day to day. Remuneration under this clause 14.7 may
be provided in such manner that the Directors decide (including by way of contribution
to a superannuation fund on behalf of the Director) and if any part of the fees of any
Director is to be provided other than in cash the Directors may determine the manner in
which the non-cash component of the fees is to be valued.
14.8 Initial Fees to Directors
The total aggregate fixed sum per annum to be paid to Directors (excluding salaries of
executive Directors) in accordance with clause 14.7 shall initially be no more than
$350,000 and may be varied by ordinary resolution of the Shareholders in general
meeting.
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14.9 Expenses
The Directors shall be entitled to be paid reasonable travelling, accommodation and
other expenses incurred by them respectively in or about the performance of their
duties as Directors. If any of the Directors being willing are called upon to perform extra
services or make any special exertions on behalf of the Company or its business, the
Directors may remunerate this Director in accordance with such services or exertions,
and this remuneration may be either in addition to or in substitution for his or her share in
the remuneration provided for by clause 14.7.
14.10 No Share Qualification
A Director is not required to hold any Shares.
15. POWERS AND DUTIES OF DIRECTORS
15.1 Management of the Company
Subject to the Corporations Act and the Listing Rules and to any other provision of this
Constitution, the business of the Company shall be managed by the Directors, who may
pay all expenses incurred in promoting and forming the Company, and may exercise all
such powers of the Company as are not, by the Corporations Act or the Listing Rules or
by this Constitution, required to be exercised by the Company in general meeting.
15.2 Borrowings
Without limiting the generality of clause 15.1, the Directors may at any time:
(a) exercise all powers of the Company to borrow money, to charge any property
or business of the Company or all or any of its uncalled capital and to issue
debentures or give any other security for a debt, liability or obligation of the
Company or of any other person;
(b) sell or otherwise dispose of the whole or any part of the assets, undertakings
and other properties of the Company or any that may be acquired on such
terms and conditions as they may deem advisable, but:
(i) if the Company is listed on ASX, the Company shall comply with the
Listing Rules which relate to the sale or disposal of a company’s assets,
undertakings or other properties; and
(ii) on the sale or disposition of the Company's main undertaking or on the
liquidation of the Company, no commission or fee shall be paid to any
Director or Directors or to any liquidator of the Company unless it shall
have been ratified by the Company in general meeting, with prior
notification of the amount of such proposed payments having been
given to all Shareholders at least 7 days prior to the meeting at which
any such payment is to be considered; and
(c) take any action necessary or desirable to enable the Company to comply with
the Listing Rules.
15.3 Attorneys
The Directors may, by power of attorney, appoint any person or persons to be the
attorney or attorneys of the Company for the purposes, with the powers, authorities and
discretions (being powers, authorities and discretions vested in or exercisable by the
Directors), for the period and subject to the conditions as they think fit. This power of
attorney may contain provisions for the protection and convenience of persons dealing
with the attorney as the Directors may determine and may also authorise the attorney
to delegate all or any of the powers, authorities and discretions vested in the person.
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15.4 Cheques, etc.
All cheques, promissory notes, bankers drafts, bills of exchange, electronic transfers and
other negotiable instruments, and all receipts for money paid to the Company, shall be
signed, drawn, accepted, endorsed or otherwise executed, as the case may be, by any
two Directors or in any other manner as the Directors determine.
15.5 Retirement Benefits for Directors
The Directors may at any time, subject to the Listing Rules, adopt any scheme or plan
which they consider to be in the interests of the Company and which is designed to
provide retiring or superannuation benefits for both present and future non-executive
Directors, and they may from time to time vary this scheme or plan. Any scheme or plan
may be effected by agreements entered into by the Company with individual Directors,
or by the establishment of a separate trust or fund, or in any other manner the Directors
consider proper. The Directors may attach any terms and conditions to any entitlement
under any such scheme or plan that they think fit, including, without limitation, a
minimum period of service by a Director before the accrual of any entitlement and the
acceptance by the Directors of a prescribed retiring age. No scheme or plan shall
operate to confer upon any Director or on any of the dependants of any Director any
benefits exceeding those contemplated in section 200F of the Corporations Act or the
Listing Rules, except with the approval of the Company in general meeting.
15.6 Securities to Directors or Shareholders
If a Director acting solely in the capacity of Director of the Company shall become
personally liable for the payment of any sum primarily due by the Company, the
Directors may create any mortgage, charge or security over or affecting the whole or
any part of the assets of the Company by way of indemnity to secure the persons or
person so becoming liable from any loss in respect of such liability.
16. PROCEEDINGS OF DIRECTORS
16.1 Convening a Meeting
A Director may at any time, and a Secretary shall, whenever requested to do so by one
or more Directors, convene a meeting of the Directors, but not less than 24 hours' notice
of every such meeting shall be given to each Director, and to each Alternate Director,
either by personal telephone contact or in writing by the convenor of the meeting. The
Directors may by unanimous resolution agree to shorter notice. An accidental omission
to send a notice of a meeting of Directors to any Director or the non-receipt of such a
notice by any Director does not invalidate the proceedings, or any resolution passed, at
the meeting.
16.2 Procedure at Meetings
The Directors may meet together for the despatch of business and adjourn and, subject
to this clause 16, otherwise regulate the meetings as they think fit.
16.3 Quorum
No business shall be transacted at any meeting of Directors unless a quorum is present,
comprising two Directors present in person, or by instantaneous communication device,
notwithstanding that less than two Directors may be permitted to vote on any particular
resolution or resolutions at that meeting for any reason whatsoever. Where a quorum
cannot be established for the consideration of a particular matter at a meeting of
Directors, one or more of the Directors may call a general meeting of the Company to
deal with the matter. In determining whether a quorum is present, each individual
participating as a Director or as an Alternate Director for another Director is to be
counted except that an individual participating in more than one capacity is to be
counted only once.
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16.4 Secretary May Attend and Be Heard
The Secretary is entitled to attend any meeting of Directors and is entitled to be heard
on any matter dealt with at any meeting of Directors.
16.5 Majority Decisions
Questions arising at any meeting of Directors shall be decided by a majority of votes. A
resolution passed by a majority of Directors shall for all purposes be deemed a
determination of “the Directors”. An Alternate Director has one vote for each Director
for whom he or she is an alternate. If an Alternate Director is also a Director, he or she
also has a vote as a Director.
16.6 Casting Votes
In the case of an equality of votes, the chairman of the meeting shall have a second or
casting vote, but the chairman shall have no casting vote where only 2 Directors are
competent to vote on the question.
16.7 Alternate Directors
A Director may, with the approval of a majority of the other Directors, appoint any
person to be an alternate Director in his or her place during any period as he or she
thinks fit, and the following provisions shall apply with respect to any Alternate Director:
(a) he or she is entitled to notice of meetings of the Directors and, if his or her
appointor Director is not present at such a meeting, he or she is entitled to
attend and vote in the place of the absent Director;
(b) he or she may exercise any powers that his or her appointor Director may
exercise (except the power to appoint an Alternate Director), and the exercise
of any such power by the alternate Director shall be deemed to be the
exercise of the power by his or her appointor Director;
(c) he or she is subject to the provisions of this Constitution which apply to Directors,
except that Alternate Directors are not entitled in that capacity to any
remuneration from the Company (but Alternate Directors are entitled to
reasonable travelling, accommodation and other expenses as the Alternate
Director may properly incur in travelling to, attending and returning from
meetings of Directors or meetings of a committees by the Directors of which
the appointor is not present);
(d) he or she is not required to hold any Shares;
(e) his or her appointment may be terminated at any time by his or her appointor
Director notwithstanding that the period of the appointment of the alternate
Director has not expired, and the appointment shall terminate in any event if
his or her appointor Director vacates office as a Director;
(f) the appointment, or the termination of an appointment, of an alternate
Director shall be effected by a written notice signed by the Director who made
the appointment given to the Company; and
(g) is, whilst acting as an Alternate Director, an officer of the Company and not the
agent of the appointor and is responsible to the exclusion of the appointor for
the Alternate Director’s own acts and defaults.
16.8 Continuing Directors May Act
In the event of a vacancy or vacancies in the office of a Director, the remaining
Directors may act but, if the number of remaining Directors is not sufficient to constitute
a quorum at a meeting of Directors, they may act only for the purposes of appointing a
Director or Directors, or in order to convene a general meeting of the Company.
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16.9 Chairman
The Directors shall elect from their number a chairman of their meetings and may
determine the period for which he or she is to hold office. Where a Directors' meeting is
held and a chairman has not been elected or is not present at the meeting within 10
minutes after the time appointed for the meeting to begin, the Directors present shall
elect one of their number to be the acting chairman of the meeting. The Directors may
elect a Director as deputy chairman to act as chairman in the chairman’s absence.
16.10 Committees
The Directors may delegate any of their powers to a committee or committees
consisting of such of their number as they think fit. The Directors may at any time revoke
any such delegation of power. A committee to which any powers have been so
delegated shall exercise the powers delegated in accordance with any directions of
the Directors, and a power so exercised shall be deemed to have been exercised by
the Directors. The members of such a committee may elect one of their number as
chairman of their meetings. Questions arising at a meeting of a committee shall be
determined by a majority of votes of the members present and voting. In the case of
an equality of votes, the chairman shall have a casting vote. The provisions of this
Constitution applying to meetings and resolutions of Directors apply, so far as they can
and with any necessary changes, to meetings and resolutions of a committee of
Directors, except to the extent they are contrary to any direction given under this clause
16.10.
16.11 Written Resolutions
A resolution in writing signed by all the Directors for the time being (or their respective
alternate Directors), except those Directors (or their alternates) who expressly indicate
their abstention in writing to the Company and those who would not be permitted, by
virtue of section 195 of the Corporations Act to vote, shall be as valid and effectual as if
it had been passed at a meeting of the Directors duly convened and held. This
resolution may consist of several documents in like form, each signed by one or more
Directors. Copies of the documents to be signed under this clause must be sent to
every Director who is entitled to vote on the resolution. The resolution is taken to have
been passed when the last Director signs the relevant documents. A facsimile
transmission, an email bearing the signature of the Director or an email of the Director
addressed to another officer of the Company confirming agreement with the resolution
and undertaking to sign the resolution as soon as practicable shall be deemed to be a
document in writing signed by the Directors.
16.12 Defective Appointment
All acts done by any meeting of the Directors or of a committee of Directors or by any
person acting as a Director are, notwithstanding that it is afterwards discovered that
there was some defect in the appointment of a person to be, or to act as, a Director, or
that a person so appointed was disqualified, as valid as if the person had been duly
appointed and was qualified to be a Director or to be a member of the committee.
16.13 Directors May Hold Other Offices
A Director may hold any other office or place of profit in or in relation to the Company
or a related body corporate of the Company (except that of auditor) in conjunction
with his or her office of Director and on any terms as to remuneration or otherwise that
the Directors shall approve.
16.14 Directors May Hold Shares, etc.
A Director may be or become a shareholder in or director of or hold any other office or
place of profit in or in relation to any other company promoted by the Company or a
related body corporate of the Company or in which the Company may be interested,
whether as a vendor, shareholder or otherwise.
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16.15 Directors Not Accountable for Benefits
No Director shall be accountable for any benefits received as the holder of any other
office or place of profit in or in relation to the Company or any other company referred
to in clause 16.14 or as a shareholder in or director of any such company.
16.16 Disclosure of Interests in Related Matters
As required by the Corporations Act, a Director must give the Directors notice of any
material personal interest in a matter that relates to the affairs of the Company. No
Director shall be disqualified by his office from contracting with the Company whether
as vendor, purchaser or otherwise, nor shall any such contract or any contract or
arrangement entered into by or on behalf of the Company in which any Director shall
be in any way interested be avoided or prejudiced on that account, nor shall any
Director be liable to account to the Company for any profit arising from any such
contract or agreement by reason only of such Director holding that office or of the
fiduciary relationship thereby established. A Director who has a material personal
interest in a matter that is being considered at a meeting of Directors must not be
present while the matter is being considered at the meeting or vote on that matter
except where permitted by the Corporations Act. Nothing in this Constitution shall be
read or construed so as to place on a Director any restrictions other than those required
by the Corporations Act or the Listing Rules.
16.17 Disclosure of Shareholding
A Director must give to the Company such information about the Shares or other
securities in the Company in which the Director has a relevant interest and at the times
that the Secretary requires, to enable the Company to comply with any disclosure
obligations it has under the Corporations Act or the Listing Rules.
16.18 Related Body Corporate Contracts
A Director shall not be deemed to be interested or to have been at any time interested
in any contract or arrangement by reason only that in a case where the contract or
arrangement has been or will be made with, for the benefit of, or on behalf of a Related
Body Corporate, he or she is a shareholder in that Related Body Corporate.
16.19 Voting, Affixation of Seal
A Director may in all respects act as a Director in relation to any contract or
arrangement in which he or she is interested, including, without limiting the generality of
the above, in relation to the use of the Company's common seal, but a Director may
not vote in relation to any contract or proposed contract or arrangement in which the
Director has directly or indirectly a material interest except as permitted by the
Corporations Act.
16.20 Home Branch to be Advised
The Directors shall advise the Home Branch without delay of any material contract
involving Director’s or Directors' interests. The advice shall include at least the following
information:
(a) the names of the parties to the contract;
(b) the name or names of the Director or Directors who has or have any material
interest in the contract;
(c) particulars of the contract; and
(d) particulars of the relevant Director's or Directors' interest or interests in that
contract.
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17. MEETING BY INSTANTANEOUS COMMUNICATION DEVICE
17.1 Meetings to be Effectual
A Director shall be entitled to attend a Directors' meeting by means of an instantaneous
communication device rather than in person. In those circumstances, a Director shall
still receive all materials and information to be made available for the purposes of the
Directors' meeting.
For the purposes of this Constitution, the contemporaneous linking together by
instantaneous communication device of a number of consenting Directors not less than
the quorum, whether or not any one or more of the Directors is out of Australia, shall be
deemed to constitute a Directors’ meeting and all the provisions of this Constitution as
to the Directors' meetings shall apply to such meetings held by instantaneous
communication device so long as the following conditions are met:
(a) all the directors for the time being entitled to receive notice of the Directors’
meeting (including any alternate for any Director) shall be entitled to notice of
a meeting by instantaneous communication device for the purposes of such
meeting. Notice of any such Directors' meeting shall be given on the
instantaneous communication device or in any other manner permitted by this
Constitution;
(b) each of the Directors taking part in the Directors' meeting by instantaneous
communication device must be able to hear each of the other Directors taking
part at the commencement of the Directors' meeting; and
(c) at the commencement of the Directors' meeting each Director must
acknowledge his or her presence for the purpose of a Directors' meeting of the
Company to all the other Directors taking part.
A Directors’ meeting held by instantaneous communication device shall be deemed to
have been held at the Registered Office.
17.2 Procedure at Meetings
A Director may leave a Directors' meeting held under clause 17.1 by informing the
Chairman of the Directors' meeting and then disconnecting his instantaneous
communication device. Unless this procedure has been followed a Director shall be
conclusively presumed to have been present and to have formed part of the quorum
at all times during the Directors' meeting by instantaneous communication device.
17.3 Minutes
A minute of the proceedings at a meeting held under clause 17.1 shall be sufficient
evidence of such proceedings and of the observance of all necessary formalities if
certified as a correct minute by the chairman or the person taking the chair at the
meeting under clause 17.1.
17.4 Definition
For the purposes of this Constitution, “instantaneous communication device” shall
include telephone, television or any other audio or visual device which permits
instantaneous communication.
18. MANAGING AND EXECUTIVE DIRECTORS AND SECRETARIES
18.1 Appointment
The Directors may from time to time appoint one or more of their number to the office of
managing director (Managing Director) of the Company or to any other office, (except
that of auditor), or employment under the Company, either for a fixed term or at will,
but not for life and, subject to the terms of any agreement entered into in a particular
case, may revoke any such appointment. A Director other than a Managing Director so
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appointed is in this Constitution referred to as an executive director (Executive Director).
The appointment of a Managing Director or Executive Director so appointed
automatically terminates if he ceases for any reason to be a Director.
18.2 Remuneration
Subject to clause 14.7, a Managing Director or Executive Director shall, subject to the
terms of any agreement entered into in a particular case, receive remuneration
(whether by way of salary, commission or participation in profits, or partly in one way
and partly in another) as the Directors may determine.
18.3 Powers
The Directors may, upon such terms and conditions and with such restrictions as they
think fit, confer upon a Managing Director or Executive Director any of the powers
exercisable by them. Any powers so conferred may be concurrent with, or be to the
exclusion of, the powers of the Directors. The Directors may at any time withdraw or
vary any of the powers so conferred on a Managing Director or Executive Director.
18.4 Rotation
Subject to clause 14.2, a Managing Director shall not retire by rotation, but Executive
Directors shall.
18.5 Secretary
A Secretary of the Company shall hold office on such terms and conditions, as to
remuneration and otherwise, as the Directors determine. There must be at least one
Secretary of the Company at all times.
19. SEALS
19.1 Common Seal
Subject to the Corporations Act, the Company may have a Seal. The Directors shall
provide for the safe custody of the Seal. The Seal shall only be used by the authority of
the Directors, or of a committee of the Directors authorised by the Directors to authorise
the use of the Seal. Every document to which the Seal is affixed shall be signed by a
Director and countersigned by another Director, (who may be an alternate Director) a
Secretary or another person appointed by the Directors to countersign that document
or a class of documents in which that document is included.
19.2 Execution of Documents Without a Seal
Without limiting the ways a document can be signed under the Corporations Act, the
Company may execute a document without using the Seal if the document is signed
by:
(a) two Directors;
(b) a Director and a Secretary; or
(c) any person or persons authorised by the Directors for the purposes of executing
that document or the class of document to which that document belongs.
19.3 Share Seal
Subject to the Corporations Act, the Company may have a duplicate Seal, known as
the Share Seal, which shall be a facsimile of the Seal with the addition on its face of the
words “Share Seal”, and the following provisions shall apply to its use:
(a) any certificate for Shares may be issued under the Share Seal and if so issued
shall be deemed to be sealed with the Seal;
(b) subject to the following provisions of this clause 19.3, the signatures required by
clause 19.1 on a document to which the Seal is affixed may be imposed by
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some mechanical means;
(c) subject to the following provisions of this clause 19.3, the Directors may
determine the manner in which the Share Seal shall be affixed to any
document and by whom a document to which the Share Seal is affixed shall
be signed, and whether any signature so required on such a document must
be actually written on the document or whether it may be imposed by some
mechanical means;
(d) the only documents on which the Share Seal may be used shall be Share or
stock unit certificates, debentures or certificates of debenture stock, secured or
unsecured notes, option certificates and any certificates or other documents
evidencing any Share Options or rights to take up any Shares in or debenture
stock or debentures or notes of the Company; and
(e) signatures shall not be imposed by mechanical means nor (except when the
requirements of clause 19.1 as to signatures are complied with) shall the Share
Seal be used on any certificate or other document mentioned in clause 19.3(d)
unless the certificate or other document has first been approved for sealing or
signature (as the case may be) by the Board or other authorised person or
persons.
20. ACCOUNTS, AUDIT AND RECORDS
20.1 Accounting records to be kept
The Directors shall cause proper accounting and other records to be kept by the
Company and shall distribute copies of the Company's accounts and reports as
required by the Corporations Act and the Listing Rules.
20.2 Audit
The Company shall comply with the requirements of the Corporations Act and the
Listing Rules as to the audit of accounts, registers and records.
20.3 Inspection
The Directors shall determine whether and to what extent, and at what time and places
and under what conditions, the accounting records and other documents of the
Company or any of them will be open to the inspection of Shareholders other than
Directors. A Shareholder other than a Director shall not be entitled to inspect any
document of the Company except as provided by law or authorised by the Directors or
by the Company in general meeting.
21. MINUTES
21.1 Minutes to be Kept
The Directors shall cause to be kept, in accordance with section 1306 of the
Corporations Act, minutes of:
(a) all proceedings of general meetings and Directors meetings; and
(b) all appointments of Officers and persons ceasing to be Officers.
21.2 Signature of Minutes
All minutes shall be signed by the chairman of the meeting at which the proceedings
took place or by the chairman of the next succeeding meeting.
21.3 Requirements of the Corporations Act
The Company and the Officers shall comply with the requirements of Part 2G.3 of
Chapter 2G of the Corporations Act.
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22. DIVIDENDS AND RESERVES
22.1 Dividends
Subject to and in accordance with the Corporations Act, the Listing Rules, the rights of
any preference Shareholders and to the rights of the holders of any shares created or
raised under any special arrangement as to dividend, the Directors may from time to
time decide to pay a dividend to the Shareholders entitled to the dividend which shall
be payable on all Shares according to the proportion that the amount paid (not
credited) is of the total amounts paid and payable (excluding amounts credited) in
respect of such Shares. The Directors may rescind a decision to pay a dividend if they
decide, before the payment date, that the Company’s financial position no longer
justifies the payment.
22.2 Interim Dividend
The Directors may from time to time pay to the Shareholders any interim dividends that
they may determine.
22.3 No Interest
No dividend shall carry interest as against the Company.
22.4 Reserves
The Directors may set aside out of the profits of the Company any amounts that they
may determine as reserves, to be applied at the discretion of the Directors, for any
purpose for which the profits of the Company may be properly applied. Pending any
application of the reserves, the Directors may invest or use the reserves in the business of
the Company or in other investments as they think fit. Any amount set aside as a reserve
is not required to be held separately from the Company’s other assets and may be used
by the Company or invested as the Directors think fit.
22.5 Carrying forward profits
The Directors may carry forward any part of the profits of the Company that it decides
not to distribute as dividends without transferring those profits to a reserve.
22.6 Alternative Method of Payment of Dividend
When declaring any dividend and subject at all times to the Corporations Act and the
Listing Rules, the Directors may:
(a) direct payment of the dividend to be made wholly or in part by the distribution
of specific assets or documents of title (including, without limitation, paid-up
Shares, debentures or debenture stock of this or any other company, gold,
gold or mint certificates or receipts and like documents) or in any one or more
of these ways, and where any difficulty arises with regard to the distribution the
Directors may settle it as they think expedient and in particular may issue
fractional certificates and may fix the value for distribution of specific assets or
any part of them and may determine that cash payments shall be made to
any Shareholders upon the basis of the value so fixed in order to adjust the
rights of all parties and may vest any of these specific assets in trustees upon
trusts for the persons entitled to the dividend as may seem expedient to the
Directors; or
(b) direct that a dividend be payable to particular Shareholders wholly or partly
out of any particular fund or reserve or out of profits derived from any particular
source and to the remaining Shareholders wholly or partly or of any other
particular fund or reserve or out of profits derived from any other particular
source and may so direct notwithstanding that by so doing the dividend will
form part of the assessable income for taxation purposes of some Shareholders
and will not form part of the assessable income of others.
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For the purposes of this clause, the Company is authorised to distribute securities of
another body corporate by way of dividend and, on behalf of the Shareholders,
provide the consent of each Shareholder to becoming a member of that body
corporate and the agreement of each Shareholder to being bound by the constitution
of that body corporate.
22.7 Shareholders entitled to dividend
Subject to this Constitution, a dividend in respect of a Share is payable to the person
registered as the holder of that share:
(a) if the Directors have fixed a time for determining entitlements to the dividend,
at that time; and
(b) in any other case, on the date on which the dividend is paid.
22.8 Payment of Dividends
Any dividend payable may be paid by:
(a) cheque sent through the mail directed to:
(i) the address of the Shareholder shown in the Register or to the address
of the joint holders of Shares shown first in the Register; or
(ii) an address which the Shareholder has, or joint holders have, in writing
notified the Company as the address to which dividends should be
sent;
(b) electronic funds transfer to an account with a bank or other financial institution
nominated by the Shareholder and acceptable to the Company; or
(c) any other means determined by the Directors.
22.9 Unclaimed Dividends
Except as otherwise provided by statute, all dividends unclaimed for one year after
having been declared may be invested or otherwise made use of by the Directors for
the benefit of the Company until claimed.
22.10 Breach of Restriction Agreement
In the event of a breach of the Listing Rules relating to Restricted Securities or of any
escrow arrangement entered into by the Company under the Listing Rules in relation to
any Shares which are classified under the Listing Rules or by ASX as Restricted Securities,
the Shareholder holding the Shares in question shall cease to be entitled to be paid any
dividends in respect of those Shares for so long as the breach subsists.
23. CAPITALISATION OF PROFITS
23.1 Capitalisation
The Directors, subject to the Listing Rules and any rights or restrictions for the time being
attached to any class or class of shares, may from time to time resolve to capitalise any
amount, being the whole or a part of the amount for the time being standing to the
credit of any reserve account or the profit and loss account or otherwise available for
distribution to Shareholders, and that that amount be applied, in any of the ways
mentioned in clause 23.2 for the benefit of Shareholders in the proportions to which
those Shareholders would have been entitled in a distribution of that amount by way of
dividend.
23.2 Application of Capitalised Amounts
The ways in which an amount may be applied for the benefit of Shareholders under
clause 23.1 are:
(a) in paying up any amounts unpaid on Shares held by Shareholders;
38
(b) in paying up in full, at an issue price decided by Director’s resolution, unissued
Shares or debentures to be issued to Shareholders as fully paid; or
(c) partly as mentioned in paragraph (a) and partly as mentioned in paragraph
(b).
23.3 Procedures
The Directors shall do all things necessary to give effect to the resolution referred to in
clause 23.1 and, in particular, to the extent necessary to adjust the rights of the
Shareholders among themselves, may:
(a) issue fractional certificates or make cash payments in cases where Shares or
debentures could only be issued in fractions; and
(b) authorise any person to make, on behalf of all the Shareholders entitled to any
further Shares or debentures upon the capitalisation, an agreement with the
Company providing for the issue to them, credited as fully paid up, of any
further Shares or debentures or for the payment up by the Company on their
behalf of the amounts or any part of the amounts remaining unpaid on their
existing Shares by the application of their respective proportions of the sum
resolved to be capitalised,
and any agreement made under an authority referred to in paragraph (b) is effective
and binding on all the Shareholders concerned.
24. BONUS SHARE PLAN
24.1 Authorisation of Bonus Share Plan
Subject to the Listing Rules and the Corporations Act, the Company may, by ordinary
resolution in general meeting, authorise the Directors to implement a Bonus Share Plan
on such terms and conditions as are referred to in the resolution and which plan
provides for any dividend which the Directors may declare from time to time under
clause 22, less any amount which the Company shall either pursuant to this Constitution
or any law be entitled or obliged to retain, not to be payable on Shares which are
participating Shares in the Bonus Share Plan but for those Shares to carry instead an
entitlement to receive an allotment of additional fully paid ordinary Shares to be issued
as bonus Shares.
24.2 Amendment and Revocation
Any resolution passed by the Company in general meeting pursuant to clause 24.1 may,
at any time, be amended or revoked by the Company by ordinary resolution in general
meeting.
25. DIVIDEND REINVESTMENT PLAN
25.1 Authorisation of Dividend Reinvestment Plan
Subject to the Listing Rules and the Corporations Act, the Company may, by resolution
of the Directors, implement a Dividend Reinvestment Plan on such terms and conditions
as are referred to in the resolution and which plan provides for any dividend which the
Directors may declare from time to time under clause 22 and payable on Shares which
are participating Shares in the Dividend Reinvestment Plan, less any amount which the
Company shall either pursuant to this Constitution or any law be entitled or obliged to
retain, to be applied by the Company to the payment of the subscription price of
ordinary fully paid Shares.
25.2 Amendment and Revocation
Any resolution passed by the Directors pursuant to clause 25.1 may, at any time, be
amended or revoked by the Company by ordinary resolution in general meeting.
39
26. NOTICES
26.1 Service by the Company to Shareholders
A notice may be given by the Company to any Shareholder either by:
(a) serving it on him or her personally; or
(b) by sending it by post to the Shareholder at his or her address as shown in the
Register of Shareholders or the address supplied by the Shareholder to the
Company for the giving of notices to this person. Notices to Shareholders
whose registered address is outside Australia shall be sent by airmail or, where
applicable, by the means provided for by clause 26.9; or
(c) be sending it by fax or other electronic means (including providing a URL link to
any document or attachment) to the fax number or electronic address
nominated by the Shareholder for giving notices.
26.2 Service of notices by the Company to Directors
A notice may be given by the Company to a Director or Alternate Director by:
(a) serving it on him or her personally;
(b) sending it by ordinary post to his or her usual residential or business address, or
any other address he or she has supplied to the Company for giving notices;
(c) sending it by fax or other electronic means (including providing a URL link to
any document or attachment) to the fax number or electronic address he or
she has supplied to the Company for giving notices.
26.3 Service of notices by Directors, Alternate Directors and Shareholders to the Company
Without limiting any other way that a communication may be given under the
Corporations Act, a notice may be given by a Director or Alternate Director or a
Shareholder to the Company by:
(a) delivering it to the Company’s registered office;
(b) sending it by ordinary post to the Company’s registered office;
(c) sending it by fax or other electronic means to the principal fax number or
electronic address at the Company’s registered office.
26.4 Deemed receipt of Notice
A notice will be deemed to be received by a Shareholder when:
(a) where a notice is served personally, service of the notice shall be deemed to
be effected when hand delivered to the member in person;
(b) where a notice is sent by post, service of the notice shall be deemed to be
effected by properly addressing, pre-paying and posting a letter containing
the notice, and to have been effected, in the case of a notice of a meeting,
on the date after the date of its posting and, in any other case, at the time at
which the letter would be delivered in the ordinary course of post;
(c) where a notice is sent by facsimile, service of the notice shall be deemed to be
effected upon confirmation being received by the Company that all pages of
the notice have been successfully transmitted to the Shareholder’s facsimile
machine at the facsimile number nominated by the Shareholder; and
(d) where a notice is sent to an electronic address by electronic means, service of
the notice shall be deemed to be effected once sent by the Company to the
electronic address nominated by the Shareholder (regardless of whether or not
the notice is actually received by the Shareholder).
40
26.5 Notice to Joint Holders
A notice may be given by the Company to the joint holders of a Share by giving the
notice to the joint holder first named in the Register of Shareholders in respect of the
Share.
26.6 Notices to Personal Representatives and Others
A notice may be given by the Company to a person entitled to a Share in
consequence of the death or bankruptcy of a Shareholder by serving it on him or her or
by sending it to him or her by post addressed to the person by name or by the title or
representative of the deceased or assignee of the bankrupt, or by any like description,
at the address (if any) supplied for the purpose by the person or, if such an address has
not been supplied, at the address to which the notice might have been sent if the
death or bankruptcy had not occurred.
26.7 Persons Entitled to Notice
Notice of every general meeting shall be given to each person who at the time of
giving the notice is:
(a) a Shareholder;
(b) a person entitled to a Share in consequence of the death or bankruptcy of a
Shareholder who, but for his death or bankruptcy, would be entitled to receive
notice of the meeting;
(c) a Director or Alternate Director;
(d) the auditor for the time being of the Company; and
(e) if the Company has issued and there are currently any Listed Securities, the
Home Branch,
unless that person waives the right to receive notice by written notice to the Company.
No other person is entitled to receive notices of general meetings.
26.8 Change of Address
The Company shall acknowledge receipt of all notifications of change of address by
Shareholders.
26.9 Incorrect Address
Where the Company has bona fide reason to believe that a Shareholder is not known
at his or her registered address, and the Company has subsequently made an enquiry in
writing at that address as to the whereabouts of the Shareholder and this enquiry either
elicits no response or a response indicating that the Shareholder or his present
whereabouts are unknown, all future notices will be deemed to be given to the
Shareholder if the notice is exhibited in the Registered Office (or, in the case of a
Shareholder registered on a Branch Register, in a conspicuous place in the place where
the Branch Register is kept) for a period of 48 hours (and shall be deemed to be duly
served at the commencement of that period) unless and until the Shareholder informs
the Company of a new address to which the Company may send him notices (which
new address shall be deemed his registered address).
27. WINDING UP
27.1 Distribution in Kind
If the Company is wound up, the liquidator may, with the authority of a special
resolution, divide among the Shareholders in kind the whole or any part of the property
of the Company, and may for that purpose set a value as the liquidator considers fair
upon any property to be so decided, and may determine how the division is to be
carried out as between the Shareholders or different classes of Shareholders. No
41
member is obliged to accept any Shares, securities or other assets in respect of which
there is any liability.
27.2 Trust for Shareholders
The liquidator may, with the authority of a special resolution, vest the whole or any part
of any property in trustees upon such trusts for the benefit of the contributories as the
liquidator thinks fit, but so that no Shareholder is compelled to accept any Shares or
other securities in respect of which there is any liability.
27.3 Distribution in Proportion to Shares Held
Subject to the rights of Shareholders (if any) entitled to Shares with special rights in a
winding-up and the Corporations Act all monies and property that are to be distributed
among Shareholders on a winding-up, shall be distributed in proportion to the Shares
held by them respectively, irrespective of the amount paid-up or credited as paid-up on
the Shares.
28. INDEMNITIES AND INSURANCE
28.1 Liability to Third Parties
To the extent permitted by law, the Company:
(a) indemnifies and agrees to keep indemnified every Director, executive officer or
Secretary of the Company; and
(b) may, by deed, indemnify or agree to indemnify an officer (other than a
Director, executive officer or Secretary) of the Company,
against a liability to another person, other than the Company or a related body
corporate of the Company, PROVIDED THAT:
(c) the provisions of the Corporations Act (including, but not limited to, Chapter 2E)
are complied with in relation to the giving of the indemnity; and
(d) the liability does not arise in respect of conduct involving a lack of good faith
on the part of the officer.
28.2 Defending Proceedings
To the extent permitted by law, the Company:
(a) hereby indemnifies and agrees to keep indemnified every Director, executive
officer and Secretary of the Company; and
(b) may, by deed, indemnify or agree to indemnify an officer of the Company
(other than a director, executive officer or secretary);
out of the property of the Company in relation to the period during which that officer
held his or her office against a liability for costs and expenses incurred by that officer in
that capacity:
(c) in defending proceedings, whether civil or criminal, in which:
(i) judgment is given in favour of that officer; or
(ii) that officer is acquitted; or
(d) in connection with an application in relation to any proceedings referred to in
clause 28.2(c) in which relief is granted to that officer by the Court under the
Corporations Act.
28.3 Insurance
To the extent permitted by law, the Company or a related body corporate of the
Company may pay, or agree to pay, a premium under a contract insuring an officer in
relation to the period during which that officer held that office, including in respect of a
42
liability for costs and expenses incurred by a person in defending civil or criminal
proceedings whether or not the officer has successfully defended himself or herself in
these proceedings, provided that:
(a) the provisions of the Corporations Act (including, but not limited to, Chapter 2E)
are complied with in relation to the payment of the premium; and
(b) the liability does not arise out of conduct involving a wilful breach of duty to
the Company or a contravention of sections 182 or 183 of the Corporations
Act.
28.4 Disclosure
Subject to any exception provided for in the Corporations Act, full particulars of the
Company's indemnities and insurance premiums in relation to the officers must be
included each year in the Directors' Report.
28.5 Definition
For the purposes of this clause 28, “officer” means:
(a) a Director, Secretary or executive officer of the Company, whether past,
present or future by whatever name called and whether or not validly
appointed to occupy or duly authorised to act in such a position; and
(b) any person who by virtue of any applicable legislation or law is deemed to be
a Director or officer of the Company, including without limitation, the persons
defined as an officer of a company by section 9 of the Corporations Act.
Nothing in this clause 28 precludes the Company from indemnifying employees (other
than officers) and consultants or sub-contractors where the Directors consider it is
necessary or appropriate in the exercise of their powers to manage the Company.
29. DIRECTORS’ ACCESS TO INFORMATION
Where the Directors consider it appropriate, the Company may:
(a) give a former Director access to certain papers, including documents provided
or available to the Directors and other papers referred to in those documents;
and
(b) bind itself in any contract with a Director or former Director to give the access.
30. OVERSEAS SHAREHOLDERS
Each Shareholder with a registered address outside Australia acknowledges that, with
the approval of the Home Branch, the Company may, as contemplated by the Listing
Rules, arrange for a nominee to dispose of any of its entitlement to participate in any
issue of Shares or Share Options by the Company to Shareholders.
31. LOCAL MANAGEMENT
31.1 Local Management
The Directors may from time to time provide for the management and transaction of the
affairs of the Company in any specified locality whether in or outside the State in such
manner as it thinks fit and the provisions contained in clauses 31.2, 31.3 and 31.4 shall be
without prejudice to the general powers conferred by this clause 31.1.
31.2 Local Boards or Agencies
The Directors may at any time and from time to time establish any local boards or
agencies for managing any of the affairs of the Company in any specified locality and
appoint any persons to be Shareholders of a local board or any managers or agents
and may fix their remuneration. The Directors may from time to time and at any time
delegate to any person so appointed any of the powers, authorities and discretions for
43
the time being vested in the Directors other than the power of making calls and may
authorise the Shareholders for the time being of any local board or any of them to fill up
any vacancies on a local board and to act notwithstanding vacancies. This
appointment or delegation may be made on the terms and subject to the conditions
that the Directors think fit and the Directors may at any time remove any person so
appointed and may annul or vary any or all of this delegation.
31.3 Appointment of Attorneys
The Company may at any time and from time to time by power of attorney appoint any
person or persons to be the attorney or attorneys of the Company for purposes and with
powers, authorities and discretions (not exceeding those vested in or exercisable by the
Company) and for the period and subject to the conditions that the Company may
from time to time think fit. This appointment may (if the Company thinks fit) be made in
favour of the Shareholders or any of the Shareholders of any local board established
under clause 31.2 or in favour of any company or of the Shareholders, directors,
nominees or managers of any company or firm or in favour of any fluctuating body of
persons whether or not nominated directly by the Company. The power of attorney
may contain any provisions for the protection or convenience of persons dealing with
such attorney or attorneys that the Company thinks fit.
31.4 Authority of Attorneys
Any such delegates or attorneys as appointed under this Constitution may be
authorised by the Company to sub-delegate all or any of the powers, authorities and
discretions for the time being vested in them.
32. DISCOVERY
Save as provided by the Corporations Act or the Listing Rules no Shareholder shall be
entitled to require discovery of any information in respect of any details of the
Company's trading or any matter which is or may be in the nature of a trade secret,
mystery of trade or technical process which may relate to the business of the Company
and which in the opinion of the Directors it would be expedient in the interests of the
Shareholders of the Company to communicate.
33. COMPLIANCE (OR INCONSISTENCY) WITH THE LISTING RULES
(a) In this Constitution, a reference to the Listing Rules is to have effect if, and only
if, at the relevant time, the Company has been admitted to and remains on
the Official List and is otherwise to be disregarded.
(b) If the Company is admitted to the Official List, the following clauses apply:
(i) notwithstanding anything contained in this Constitution, if the Listing
Rules prohibit an act being done, the act shall not be done;
(ii) nothing contained in this Constitution prevents an act being done that
the Listing Rules require to be done;
(iii) if the Listing Rules require an act to be done or not to be done,
authority is given for that act to be done or not to be done (as the
case may be);
(iv) if the Listing Rules require this Constitution to contain a provision and it
does not contain such a provision, this Constitution is deemed to
contain that provision;
(v) if the Listing Rules require this Constitution not to contain a provision
and it contains such a provision, this Constitution is deemed not to
contain that provision; and
44
(vi) if any provision of this Constitution is or becomes inconsistent with the
Listing Rules, this Constitution is deemed not to contain that provision
to the extent of inconsistency.
34. CONSISTENCY WITH CHAPTER 2E OF THE CORPORATIONS ACT
34.1 Requirements of Chapter 2E
Notwithstanding any other provision to the contrary contained in this Constitution:
(a) the Company shall not give a financial benefit to a related party except as
permitted by Chapter 2E of the Corporations Act;
(b) all notices convening general meetings for the purposes of section 208 of the
Corporations Act shall comply with the requirements of sections 217 to 227 of
the Corporations Act;
(c) all meetings convened pursuant to section 221 shall be held in accordance
with the requirements of section 225 of the Corporations Act; and
(d) no holder of Shares or person on their behalf shall be entitled to vote or vote on
a proposed resolution under Part 2E.1 of the Corporations Act if that holder of
Shares is a related party of the public company to whom the resolution would
permit a financial benefit to be given or an associate of such a related party.
34.2 Definitions
For the purposes of this clause 34 the terms:
(a) “financial benefit” and “related party” shall have the meanings given or
indicated by Part 2E.1 and Part 2E.2 of the Corporations Act; and
(b) “associate” shall have the meaning given to it in Division 2 of Part 1.2 of the
Corporations Act.
35. INADVERTENT OMISSIONS
If some formality required by this Constitution is inadvertently omitted or is not carried out
the omission does not invalidate any resolution, act, matter or thing which but for the
omission would have been valid unless it is proved to the satisfaction of the Directors
that the omission has directly prejudiced any Shareholder financially. The decision of
the Directors is final and binding on all Shareholders.
36. TRANSITIONAL
36.1 Provisions Relating to Official Quotation of Securities
Subject to clause 36.2 the provisions of this Constitution which relate to the official
quotation of the Company's securities on ASX (Official Quotation), including but not
limited to clauses which refer to ASX, the Listing Rules, the ASX Settlement Operating
Rules, the Home Exchange, CHESS, Restricted Securities or Listed Securities shall not have
effect except while the Company is admitted to the official list of entities that ASX has
admitted and not removed.
36.2 Severance
To the extent that any of the provisions of this Constitution referred to in clause 36.1
above can continue to have effect following severance of the matters relating to
Official Quotation, then such provisions shall be valid and effectual, notwithstanding
clause 36.1, as from the date of adoption of this Constitution by special resolution of the
Shareholders of the Company.
45
SCHEDULE 1 – PREFERENCE SHARES (CLAUSE 2.6)
1. In this schedule, unless the context otherwise requires:
Dividend Date means, in relation to a Preference Share, a date specified in the Issue
Resolution on which a dividend in respect of that Preference Share is payable.
Dividend Rate means, in relation to a Preference Share, the term specified in the Issue
Resolution for the calculation of the amount of dividend to be paid in respect of that
Preference Share on any Dividend Date, which calculation may be wholly or partly
established by reference to an algebraic formula.
Franked Dividend has the same meaning ascribed to Franked Distribution in Part 3-6 of
the Tax Act.
Issue Resolution means the resolution specified in clause 4 of this schedule.
Preference Share means a preference share issued under clause 2.6.
Redeemable Preference Share means a Preference Share which the Issue Resolution
specified as being, or being at the option of the Company to be, liable to be
redeemed.
Redemption Amount means, in relation to a Redeemable Preference Share, the amount
specified to be paid on redemption of the Redeemable Preference Share.
Redemption Date means, in relation to a Redeemable Preference Share, the date
specified in the Issue Resolution for the redemption of that Preference Share.
Tax Act means the Income Tax Assessment Act 1997.
2. Each Preference Share confers upon its holder:
(a) the right in a winding up to payment in cash of the capital (including any
premium) then paid up on it, and any arrears of dividend in respect of that
Preference Share, in priority to any other class of Shares;
(b) the right in priority to any payment of dividend to any other class of Shares to a
cumulative preferential dividend payable on each Dividend Date in relation to
that Preference Share calculated in accordance with the Dividend Rate in
relation to that Preference Share; and
(c) no right to participate beyond the extent elsewhere specified in clause 2 of this
schedule in surplus assets or profits of the Company, whether in a winding up or
otherwise.
3. Each Preference Share also confers upon its holder the same rights as the holders of
ordinary Shares to receive notices, reports, audited accounts and balance sheets of the
Company and to attend general meetings and confers upon its holder the right to vote
at any general meeting of the Company in each of the following circumstances and in
no others:
(a) during a period during which a dividend (or part of a dividend) in respect of
the Preference Share is in arrears;
(b) on a proposal to reduce the Company’s share capital;
(c) on a resolution to approve the terms of a buy-back agreement;
(d) on a proposal that affects rights attached to the Preference Share;
(e) on a proposal to wind up the Company;
(f) on a proposal for the disposal of the whole of the Company’s property,
business and undertaking;
(g) during the winding up of the Company; and
46
(h) in any other circumstances in which the Listing Rules require holders of
preference shares to vote.
4. The Board may only allot a Preference Share where by resolution it specifies the
Dividend Date, the Dividend Rate, and whether the Preference Share is or is not, or at
the option of the Company is to be, liable to be redeemed, and, if the Preference Share
is a Redeemable Preference Share, the Redemption Amount and Redemption Date for
that Redeemable Preference Share and any other terms and conditions to apply to that
Preference Share.
5. The Issue Resolution in establishing the Dividend Rate for a Preference Share may specify
that the dividend is to be one of:
(a) fixed;
(b) variable depending upon any variation of the respective values of any factors
in an algebraic formula specified in the Issue Resolution; or
(c) variable depending upon such other factors as the Board may specify in the
Issue Resolution,
and may also specify that the dividend is to be a Franked Dividend or not a Franked
Dividend.
6. Where the Issue Resolution specifies that the dividend to be paid in respect of the
Preference Share is to be a Franked Dividend the Issue Resolution may also specify:
(a) the extent to which such dividend is to be franked (within the meaning of the
Tax Act); and
(b) the consequences of any dividend paid not being so franked, which may
include a provision for an increase in the amount of the dividend to such an
extent or by reference to such factors as may be specified in the Issue
Resolution.
7. Subject to the Corporations Act, the Company must redeem a Redeemable Preference
Share on issue:
(a) on the specified date where the Company, at least 15 Business Days before
that date, has given a notice to the holder of that Redeemable Preference
Share stating that the Redeemable Preference Share will be so redeemed on
the specified date; and
(b) in any event, on the Redemption Date,
but no Redeemable Preference Share may be redeemed and no notice of redemption
may be given before the date set by the Directors (if any) upon which that
Redeemable Preference Share is issued.
8. The certificate issued by the Company in relation to any Preference Share must specify
in relation to that Preference Share:
(a) the date of issue of the Preference Share;
(b) the Dividend Rate and Dividend Dates;
(c) whether the Preference Share is a Redeemable Preference Share and if it is:
(i) the Redemption Amount and Redemption Date; and
(ii) the conditions of redemption (if any);
(d) the conditions of participation (if any) in respect of the Preference Share set
out in clause 3 of this schedule; and
(e) any other matter the Board determines.
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9. On redemption of a Redeemable Preference Share, the Company, after the holder has
surrendered to the Company the certificate in respect of that Redeemable Preference
Share, must pay to the holder the Redemption Amount in cash, by cheque or in any
other form that the holder agrees to in writing.
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Date: 23-12-2019 10:35:00
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